Fordham Urban Law Journal
Volume 38, Issue 4
2010
Article 5
The Use and Abuse of Blight in Eminent
Domain
Martin E. Gold∗
∗
†
Lynne B. Sagalyn†
Sidley Austin LLP
Columbia University Graduate School of Business
c
Copyright 2010
by the authors. Fordham Urban Law Journal is produced by The Berkeley
Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj
The Use and Abuse of Blight in Eminent
Domain
Martin E. Gold and Lynne B. Sagalyn
Abstract
This Article examines the term “blight” and how it is used in eminent domain cases. Part I
discusses the development of the term and how various states define it. Part II lays out a hierarchy
which may be used to compare the private benefits on one hand and the public benefits on the other
hand in redevelopment projects. In Part III, the Columbia University expansion in Manhattanville
is examined, at both the New York Appellate Division and Court of Appeals levels. Part IV
discusses how forty-three states redefined blight after the Kelo case. Part V discusses how political
and business forces have reduced efforts to enact serious reforms. Finally, Part VI looks again at
the redefinitions of blight since Kelo and propose better definitions that reduce abuse.
KEYWORDS: eminent domain, blight, Fifth Amendment, takings, New York
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THE USE AND ABUSE OF BLIGHT IN EMINENT
DOMAIN
Martin E. Gold & Lynne B. Sagalyn∗
Introduction ............................................................................................. 1119
I. Blight Determinations: More Facilitating Than Limiting ................. 1121
II. The Hierarchy of Uses ..................................................................... 1128
III. Blight and Public Purpose in Columbia’s Expansion in
Manhattanville .............................................................................. 1143
IV. Attempted Reforms ........................................................................ 1150
V. Conflicting Political Forces ............................................................. 1160
VI. Creating Better Safeguards ............................................................. 1165
Conclusion ............................................................................................... 1173
INTRODUCTION
Blight findings have functioned as a cornerstone for condemnation takings since the severe urban decline in the middle of the twentieth century
prompted governments at every level, throughout the country, to actively
intervene in the real estate market. Elements of blight, and then the term
itself, became a foundational basis for this governmental intervention. But
using blight as a basis for that intervention has become increasingly controversial as its application has moved from slum clearance to urban redevelopment, then to economic development projects, and on to revenue enhancing projects—all the while its definition expanded. Immediately
following the outcry over the U.S. Supreme Court’s decision in Kelo v. City
of New London,1 homeowners, business activists, and state politicians, or∗
Martin E. Gold is a partner at Sidley Austin LLP, an Adjunct Professor of Real Estate Development at Columbia University Graduate School of Architecture, Planning and Preservation, and formerly served as New York City’s Director of Corporate Law in the New York
City Law Department. Lynne B. Sagalyn is the Earle W. Kazis & Benjamin Schore Professor of Real Estate at Columbia University Graduate School of Business.
1. 545 U.S. 469 (2005). In Kelo, the city of New London, acting through its development agency, approved a development plan to revitalize its ailing economy and initiated
condemnation proceedings against owners of property (residential) that refused to sell. The
Supreme Court said the City could not take petitioners’ land simply to confer a private benefit on a particular private party, but that the takings in this case did not “benefit a particular
class of identifiable individuals.” The City, it observed, was trying to coordinate a variety
1119
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ganized to “reform” their state’s eminent domain statutes. A redefinition of
blight became a top agenda item. Over its more than half century of use,
blight had become a well-worn term of art. But its application to takings is
subjective and malleable, so much so that it can now be said to be in the
eyes of the beholder. When applied in the interests of curing slum conditions and remedying unsafe and unsanitary urban conditions, it generally
functioned as intended. When applied for the purpose of initiating urban
revitalization, it also functioned mostly as intended, but all too often with
very negative consequences for the large numbers of low-income and minority households and businesses that were uprooted and displaced. But as
its application has moved into other domains, including pure fiscal gain and
competitive quests to retain and expand corporate facilities, it has been
stretched and misused.
In this Article, we take a close look at the issue of blight, its use, and its
abuse. In Part I, we briefly describe the origins of the use of blight, and
discuss how, in the absence of a clear and unambiguous definition, the
eminent domain statutes of the nation’s fifty states describe blight through
multiple and very diverse criteria. Even prior to Kelo, several states
enacted reforms aimed at curbing abuses arising from tabula rasa blight
criteria, but these reforms did not change the highly subjective character of
its determination. Part II is devoted to laying out a hierarchy of project
uses and benefits. Eminent domain is a balance between government and
public needs on the one hand and property owner rights on the other. By
creating the hierarchy we can compare the amount of public benefits on the
one hand and private benefits on the other in any project. This ladder of
uses and benefits moves from pure public benefit at the top, down to nearly
total private benefit at the bottom. Where a particular eminent domain taking falls along the spectrum of the hierarchy will depend upon its ratio of
public benefits to private benefits. We hope that this will help create a useful perspective and tool to evaluate the usage of eminent domain and blight
findings.
In Part III, we consider Columbia University’s expansion in Manhattanville and how the findings of blight there were assessed very differently by
of commercial, residential, and recreational land uses, to form a greater whole. And although the City would not be opening the condemned land to general public use, the Court
reaffirmed its long held view that public use is interpreted to mean “public purpose.” The
promotion of economic development, it said, is a long-accepted governmental function, and
there was no principled way of distinguishing economic development projects from the other public purposes recognized by the Court. Given the facts of the case, and the Court’s policy of deference to legislative judgments as to what public needs justify the use of the takings power, the takings in Kelo, it held, satisfy the Fifth Amendment. The condemnation in
Kelo did not depend on a blight finding.
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New York’s Appellate Division and Court of Appeals. In Part IV, we discuss the extent to which the post-Kelo reforms enacted in forty-three states
redefined blight; and, in Part V, we discuss how political and business
forces have weakened and reduced efforts to enact serious reforms. In addressing abuses in the use of blight criteria, in Part VI, we look again at the
reforms made in the post-Kelo era and focus on the creation of a better definition through the elimination of the most abused criteria and the use of
quantification. Believing as we do that there are clear and compelling reasons for using the power of eminent domain for public purposes (and not
just pure public use) our purpose is to see established thoughtfully crafted,
objective, and measurable standards for the determination of blight.
I. BLIGHT DETERMINATIONS: MORE FACILITATING THAN LIMITING
The idea was unconventional, and controversial, from the start. As a
condition to be ameliorated by concerted government intervention, “blight”
had to be invented.2 The notion that certain physical, social, and economic
conditions short of being a slum, though not yet a slum, only on the way to
likely becoming a slum, presented a danger for cities and a threat to public
health, safety, and general welfare evolved with time. It took more than
thirty years for the concept of blight, blighting conditions, and blighted districts to become the underlying policy logic of urban redevelopment and
the basis of positive findings for using eminent domain powers in pursuit of
rebuilding the nation’s central cities. The first step was taken in the 1920s
and 1930s by the efforts of a few states3 and then the federal government to
clear slums and build public housing. This was followed by several pioneering state enabling acts in the 1940s4 designed to attract private enterprise to rebuild urban areas. Then Title I of the 1949 Housing Act authorizing the federal urban renewal program codified the policy logic of
tearing down slums and building middle- and upper-income housing and
structures for commerce and industry as urban redevelopment strategy. To
2. See ROBERT M. FOGELSON, DOWNTOWN: ITS RISE AND FALL, 1880-1950, at 317-80
(2001).
3. New York State led the way in 1926, and New Jersey followed shortly thereafter in
1929. In response to dire slum conditions (following the limiting lessons learned from
tenement reform laws), New York’s legislators established laws granting eminent domain
powers to private developers in exchange for specific regulatory conditions. This led to the
development of the Amalgamated Dwellings and Knickerbocker Village, among others,
though this did not generate the scale of hoped for redevelopment. See Colin Gordon,
Blighting the Way: Urban Renewal, Economic Development, and the Elusive Definition of
Blight, 31 FORDHAM URB. L.J. 305, 310 (2004).
4. Maryland, Minnesota, and Pennsylvania were among the first, yet by the end of
World War II, about twenty states had passed enabling acts and more would follow. See
FOGELSON, supra note 2, at 304.
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promote their cause, the advocates of redevelopment, thinking long-term
and tactically, framed blight as an economic drain on cities, not just a social
liability. Blighted areas had to be razed because, redevelopment advocates
reasoned, they are “incipient slums” and a threat to the fiscal solvency of
the city.5
In his major treatise, the first comprehensive study of land values in a
large city over an extended period of time, Homer Hoyt described blight as
the natural result of economic and social change. Referring to a three-mile
belt of land in Chicago extending from the center city, known as the
“Loop,” which “was once an area of new and vigorous growth in 1873 and
an obsolete and blighted area in 1933,” he laid out the economic consequences of decline:
Thus land in what is now known as the blighted area yielded an income
and had prospects of enhancement in value due to absorption by industry
that it does not have in 1933. Even in 1900, however, the returns from
this class of property were capitalized at a high rate, so that the land values as whole had ceased to advance.6
Hoyt went on to cite the close proximity of the vice section, and of “the
advancing line of industries and warehouses” to what once were fashionable residential sections that were sliding downward and losing their social
prestige.7 As a result of these changes in the pattern of the distribution of
population and land values, Hoyt concluded that “blighted areas” were
more difficult to reclaim because “obsolete improvements and diversified
ownership” made them less competitive for redevelopment by market
forces than new development on “tracts of virgin prairie” serviced by transit or commuter rail or accessible by automobile.8 Large sections of the
city, for example, the packing plants on the South Side as well as areas on
the North Side and near West Side, “seem to offer few attractions for residential development, unless reclamation of the blighted areas is to be attempted on a grand scale.”9
The facilitating feature of “blight” was that it was hard to know precisely
what it was and therefore hard to define, yet this very vagueness would
make it easy to find. The phrases used in the 1930s to describe its conditions unsurprisingly resonate with typical contemporary statutory criteria,
5. Id. at 349.
6. HOMER HOYT, ONE HUNDRED YEARS OF LAND VALUES IN CHICAGO: THE RELATIONSHIP OF THE GROWTH OF CHICAGO TO THE RISE OF LAND VALUES, 1830-1933, at 202
(2000).
7. Id.
8. Id. at 362.
9. Id. at 363.
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pre- and post-Kelo: areas where property values are decreasing; where
buildings have become obsolete; where fundamental repairs are not being
made; where high vacancies exist; where economic development has been
substantially retarded or normal development frustrated; or, where taxes do
not pay for public services. Commenting as early as 1918, a Philadelphian
professional noted a blighted area “is a district which is not what it should
be.”10 Decades later, under Robert Moses’ urban renewal machine as well
as in cities all across the nation, what constituted a blighted area remained
open to argument and debate.
Whatever the actual merits, cities had good reasons to stretch the meaning of blight, as Bernard J. Frieden and Lynne Sagalyn explained in Downtown, Inc.: How America Rebuilds Cities:11
Federal regulations that emphasized clearing the most unlivable areas
conflicted with other rules requiring local renewal agencies to sell their
cleared sites to private developers for rebuilding. Few developers were
willing to build in the heart of the slums. Cities such as Newark tried in
the early years of the program to plan middle-income housing in some of
the worst parts of the city, only to discover that no developers were interested. Soon city renewal directors were searching for “the blight that’s
right”—places just bad enough to clear but good enough to attract developers.12
Because the federal government was picking up two-thirds of the cost to
clear blighted and slum areas and write-down the cost of selling the land to
developers,13 it would not have been unreasonable to expect government
bureaucrats or congressional legislation to define the specifics of the urban
renewal program and exercise control over what local agencies did with the
grant monies. Yet, Title I left these specifics to local governments and
10. William C. Stanton, Blighted Districts in Philadelphia, in PLANNING PROBLEMS OF
TOWN, CITY, AND REGION 76, 76 (1918).
11. BERNARD J. FRIEDEN & LYNNE B. SAGALYN, DOWNTOWN INC.: HOW AMERICA REBUILDS CITIES 23 (1989).
12. Id.
13. To make the financing task easier for cities, the federal government allowed them to
pay their share by building public works to serve a project area. Under this option, the federal government would first share two-thirds of the cost of such items as new schools or
street improvements for renewal projects, and second, accept these public works at full cost
as part of a city’s required matching share. In this way a renewal agency could use public
works to pay for its entire share of a project and many did. By 1968, the federal government
was collecting only twelve cents of every local matching dollar in cash; the rest was all public works and similar credits. See FRIEDEN & SAGALYN, supra note 11, at 26-27. The political logic of this type of “costless” off-budget financing was a lesson cities took to heart in
devising subsequent strategies to finance redevelopment once the federal government ended
urban renewal in 1974. See Lynne B. Sagalyn, Explaining the Improbable: Local Redevelopment in the Wake of Federal Cutbacks, 56 J. AM. PLAN. ASS’N 429 (1990).
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their redevelopment agencies, which were heavily influenced by downtown
business interests and real estate developers. This coupling formed the basis of a formidable and enduring redevelopment alliance between government and business. Federalism likewise prevailed in the definition and determination of “blighted areas,” since the federal government deferred to
the states, which enabled the redevelopment entities. As historian Colin
Gordon noted in his inclusive analysis of the definitional character of
blight, “most states, in fact, stopped short of defining blight and instead offered a descriptive catalogue of blighted conditions—often pasted verbatim
from Progressive-era health or safety statutes.”14 And as has been noted by
several scholars parsing the statues and definitional foundations of blight,
the criteria necessary for positive findings of blight are broad in number;
and “liberal,” “vague,” “ambiguous,” or open-ended and non-objective in
determination.15
However diverse the criteria range across state statutes, they potently
combine with broad discretionary powers given to local redevelopment authorities in determining blight. The table below shows the prevalence of
blighting criteria. It is compiled from Hudson Hayes Luce’s analysis of the
statutes in each of the fifty states and the District of Columbia, which
groups the common characteristics of blight into twelve categories.16
14. Gordon, supra note 3, at 312.
15. See, e.g., George Lefcoe, Finding the Blight that’s Right for California Redevelopment Law, 52 HASTING L.J. 991 (2000-2001) [hereinafter Lefcoe, Finding the Blight that’s
Right]; Hudson Hayes Luce, The Meaning of Blight: A Survey of Statutory and Case Law,
35 REAL PROP. PROB. & TR. J. 389 (2001); Wendell E. Pritchett, Beyond Kelo: Thinking
About Urban Development in the 21st Century, 22 GA. ST. U. L. REV. 895 (2006). For a
discussion of blight and tax increment financing (TIF), see generally Gordon, supra note 3;
George Lefcoe, After Kelo, Curbing Opportunistic TIF-Driven Economic Development:
Forgoing Ineffectual Blight Tests; Empowering Property Owners and School Districts, 83
TULANE L. REV. 1 (2008) [hereinafter Lefcoe, After Kelo]; George Lefcoe, Redevelopment
Takings After Kelo: What’s Blight Got To Do With It?, 17 REV. L. & SOC. JUST. 803-51
(2008) [hereinafter Lefcoe, Redevelopment Takings After Kelo].
16. Luce’s analysis included Guam, Puerto Rico, and the Virgin Islands, which are
omitted from discussion herein. See Luce, supra note 15.
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Table 1. Pre-Kelo Incidence of Blight Criteria Across State Statutes (including District of Columbia).
Incidence in Statutes
Category Category of Blight Criteria
No.
%
1
Structural Defects
51
100%
2
Health Hazards
49
96%
3
Faulty or Obsolescent Planning
43
84%
4
Taxation Issues
35
69%
Lack of Necessary Amenities (impact5
34
67%
ing health and safety)
6
Condition of Title
31
61%
7
Character of Neighborhood
12
25%
8
Blighted Open Areas
12
24%
9
Declared Disaster Area
11
22%
10
Economic Use of Land
10
20%
11
Vacancies
9
18%
12
Physical or Geological Factors
7
14%
Source: Compilation by authors from Luce, supra note 15, at 397-402.
Several themes stand out: (1) Blight is commonly and intuitively defined
by structural defects and health hazards in nearly every state statute. Insufficient light, air, ventilation, and access to utilities, all typically associated
with necessary standards of living, are also included as blight criteria in
two-thirds of the statutes. Condensed together, these criteria represent the
police-power definition of blight, conditions that are a threat to public
health and safety. (2) Planning features, whether faulty or obsolescent (including irregular or small-lot layout, insufficient street capacity, overcrowding, lot areas covered by buildings, and insufficient green spaces,
parks, or recreational facilities), define a second broad category that all but
eight statutes include as a condition of blight.17 (3) Neighborhood character or the presence of blighted open areas (large areas of undeveloped or
vacant land) are far less common as criteria of blight; only thirteen statutes18 include neighborhood character, and only a different set of twelve19
17. The eight states are Connecticut, Indiana, Maryland, Michigan, New York, Pennsylvania, Virginia, and Wisconsin. See id. at 395.
18. Arizona, Arkansas, California, Connecticut, Indiana, Maine, Michigan, Montana,
Nebraska, Nevada, Rhode Island, South Carolina, and Utah. See id. at 399-400 nn.80-92.
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include blighted open areas as a determinant. (4) Criteria often cited for
condemnation abuse—economic use of land20 and vacancies21 impacting
private redevelopment efforts—are relatively infrequent as preconditions
for a positive finding of blight; as of 2000, in only ten states (or twenty
percent),22 New York among them,23 could the economic use of land qualify as a condition of blight; only nine24 statutes admit vacancies as a qualifying condition. In contrast, taxation25 and legal conditions26 are far more
common blight criteria—sixty-nine and sixty-one percent, respectively.
Though the common practice is to show evidence of as many blighting factors as possible, all but five states27 base a positive determination of blight
on the presence of a single blighting factor. Moreover, only seven states,28
according to another analysis include any quantification in their designation
of what is a blighted area.29
What impact post-Kelo reform efforts would have on the statutory basis
for positive findings of blight is discussed shortly, but the widely held consensus among scholars and practitioners alike prior to the ruling was that
“blight,” as Gordon phrased it, “has lost any substantive meaning as either
19. Alabama, District of Columbia, Idaho, Maine, Massachusetts, Mississippi, New Jersey, New Mexico, Pennsylvania, South Dakota, Vermont, and Wyoming. See id. at 400
nn.93-104.
20. Economic use of land includes arrested economic development, stagnant or unproductive character of land, loss of population, and improvement in value of land by placement of development. One might also include in this category, physical and geological factors that would make development by private enterprise uneconomical and infeasible. See
id. at 396.
21. Vacancies include vacant and abandoned buildings, vacant lots, low percentage of
occupancy in buildings, and high turnover rate for leased properties. See id.
22. The ten states are Delaware, District of Columbia, Indiana, Kansas, Massachusetts,
Nevada, New York, Oklahoma, Oregon, and Virginia. See id. at 401.
23. See id. The New York statute that is applicable to municipalities, according to
Luce’s review, includes nine of the twelve blight criteria, omitting only faulty or obsolescent planning features, taxation issues, and condition of title. See New York Urban Development Corporation Act, N.Y. UNCONSOL. LAWS, §§ 6251-6285, 6260 (McKinney 2011).
24. Alabama, California, Delaware, District of Columbia, Maryland, Massachusetts,
New Jersey, Pennsylvania, and South Carolina. See Luce, supra note 15, at 402 nn.128-36.
25. Taxation issues include unpaid ad valorem property taxes, special assessment liabilities exceeding the fair market value of the land, and insufficient tax revenues to cover the
cost of services provided by the taxing authority. See id. at 395.
26. Condition of title factors include ownership of title vested in too many persons to
allow economical development, title in the city or municipal government as a result of tax or
other foreclosure, or inability to determine or find owner(s) of the land. See id.
27. The five states that require positive findings of more than one factor are Colorado,
Kansas, Nebraska, South Carolina, and Utah. See id. at 403.
28. The seven states are Alabama, Arkansas, California, Massachusetts, Minnesota, Nebraska, and South Dakota. This will be discussed further infra.
29. Gordon, supra note 3, at 320 n.134.
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a description of urban conditions or a target for public policy.”30 Referring
to its usage for tax increment financing, he went on to say that:
[B]light is less an objective condition than it is a legal pretext for various
forms of commercial tax abatement that, in most settings, divert money
from schools and county-funded social services. Redevelopment policies
originally intended to address unsafe or insufficient urban housing are
now more routinely employed to subsidize the building of suburban shopping malls.31
It was one thing for the policy logic of urban redevelopment to use
blight as a condition precedent for condemnation. It was quite another for
an off-budget financing strategy such as Tax Increment Financing (TIF) to
appropriate liberal blight criteria and use it extensively as a basis for condemnation actions designed to enhance the fiscal fortunes of municipalities,
as will be further discussed shortly.32 Nowhere was this more common
than in California after passage of the tax-cutting voter initiative, Proposition 13, in 1978, which capped taxes on real property at one percent of the
full cash value, restricted annual increases of assessed value of real property to an inflation factor not to exceed two percent per year, and prohibited
reassessment of a new base year value except for a change in ownership
and completion of new construction.33 Using TIF for fiscally-driven redevelopment projects was not, as Professor George Lefcoe has claimed, limited to California’s biggest and oldest cities.34 California redevelopment
agencies have declared prime sites in affluent cities (even the entire town
of affluent Coronado) blighted. In a continuing critique, he explained that
California’s statutory definition of blight:
[I]s not just about fairness to the owners of property taken. In California,
redevelopment, particularly redevelopment intended to attract high volume retail, is a widely used way of boosting the city’s share of the state
30. Id. at 307.
31. Id.
32. See infra text accompanying notes 91-104.
33. Proposition 13, officially named the People’s Initiative to Limit Property Taxation,
added Article 13A to the California Constitution. Section 1(a) limits the tax rate for real
estate: “The maximum amount of any ad valorem tax on real property shall not exceed one
percent (1%) of the full cash value of such property. The one percent (1%) tax to be collected by the counties and apportioned according to law to the districts within the counties.”
The proposition decreased property taxes by assessing property values at their 1975-76 value (Section 2(a)) and restricted annual increases of assessed value of real property to an inflation factor, not to exceed two percent per year (Section 2(b)). It also prohibited reassessment of a new base year value except for change in ownership or completion of new
construction (Section 2(a)).
34. Id.
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sales tax and of sequestering property tax money that would have gone to
the counties, school districts, and other taxing entities.35
Among those who looked long and hard at the definitional issues surrounding the policy uses and abuses of the blight standard, it is hard to find
much optimism for the notion that significant abuse reform could be accomplished through a definition of “blight.” Crafting a definition that
could break free of the risk of manipulation appeared elusive, however
beneficial the intent.36
Prior to Kelo, several states had enacted reforms aimed at curbing abuses
arising from tabula rosa blight criteria. These reforms included a rewording of the descriptive criteria in order to avoid the “double-counting” of
similar factors (Illinois37), the addition of new descriptive criteria (Missouri38), a “check-list” formula (Illinois39 and California40), and a tighter
definition of eligible properties by restricting land eligible for designation
as a blighted area (primarily wetlands, vacant lands, and agricultural
land).41 Yet these “reforms,” Gordon concluded:
[D]o not change the fact that judgments as to things like “obsolescence,”
“dilapidation,” or “deleterious land uses” remain highly subjective.
Moreover, blight remains a designation sought by developers, and hence
shaped not by public purpose, but by private interests seeking public subsidies. Finally, state level reforms remained spooked by the prospect of
interstate disadvantage . . . . Meaningful reform must address both the
imprecision and ambiguities of existing blight definitions and the incentives to twist those definitions created by fragmented federal and metropolitan governance.42
II. THE HIERARCHY OF USES
Since the Supreme Court decision in Kelo v. City of New London,43 the
nation has gone through a period of soul searching regarding the proper use
35. Lefcoe, Redevelopment Takings After Kelo, supra note 15, at 820.
36. See Dale A. Whitman, Eminent Domain Reform in Missouri: A Legislative Memoir,
71 MO. L. REV. 721, 742 (2006). See generally Christopher S. Brown, Comment, Blinded by
the Blight: A Search for a Workable Definition of “Blight” in Ohio, 73 U. CIN. L. REV. 207
(2004).
37. Gordon, supra note 3, at 335 n.256 (citing 65 ILL. COMP. STAT. ANN. 5/11-74.43(a)(1) (2003) (amending 65 ILL. COMP. STAT. 5/11-74.4-3(a) (1999)).
38. See id. at 335 n.257 (citing S.B. 172, 92d Gen. Assemb., 1st Sess. § 99.805(7), (8)
(Mo. 2003) (unenacted)).
39. See id. at 335, n.258. (citing 65 ILL. COMP. STAT. ANN. 5/11-74.4-3(a)(1) (1999)).
40. See id. at 335, n.259. (citing CAL. HEALTH & SAFETY CODE § 33031 (1999)).
41. See id. at 336, n.260.
42. See id. at 336-37.
43. 545 U.S. 469 (2005).
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of the power of eminent domain. An essential question in this debate is
“What is the right balance in eminent domain between governmental needs
on the one hand and property owner rights on the other?”
There is little contention with respect to governmental needs when the
use to which the property being taken is a pure or quintessential public use.
“Pure Public Uses” would include modes of transportation that remain in
governmental hands, such as highways, local streets, subways, light transit,
airports, municipal docks and ports, reservoirs, water tunnels, sewer systems, public libraries, public schools, prisons, and police facilities. Pure
Public Use would also include parks or other land that is owned by the
government and open and accessible to the entire public at all times, even if
a usage or entry fee is required.
Just below Pure Public Use are facilities with uses that directly benefit
the general public and are owned by the public sector, including many in
the use category just described, but are operated by private companies.
Government owned utility systems and transportation facilities44 that are
developed and/or leased or licensed to private entities, or otherwise managed by them, fall into this category. Private prisons that are owned by
the federal, state, or local government would be included here as well.
They are not open to the public (though neither are public prisons) and are
operated for a profit by private companies, but they serve a clear governmental purpose and payments come entirely from the government. Moreover, the government determines who is going to be a “user,” i.e., who is to
be incarcerated.45 Charter schools and other public schools managed by
not-for-profit entities or private companies, likewise, would be included in
this group. Government owned but privately operated sports facilities can
also be put in this category. However, private pre-collegiate schools would
not be included. Tuition is paid by private persons; the private school de44. In County of Wayne v. Hathcock, 684 N.W.2d 765, 782 (Mich. 2004), the term “instrumentalities of commerce” is used. It is taken from Justice Ryan’s dissent in Poletown
Neighborhood Council v City of Detroit, 410 Mich. 616, 665 (1981).
[T]he U.S. Supreme Court and courts in every state have upheld the use of eminent domain for acquiring property for laying railroad track. Likewise, courts accept the use of eminent domain for digging irrigation ditches and canals, piping
oil, distributing artificial light and power, laying telephone wires, and laying
coaxial cable and fiber optic lines.
Daniel B. Kelly, The “Public Use” Requirement in Eminent Domain Law: A Rationale
Based On Secret Purchases and Private Influence, 92 CORNELL L. REV. 1, 60 (2006).
45. In addition, such private prisons can be financed with tax-exempt bonds. See Ass’n
of State Corr. Administrators, ALTERNATIVES FOR FINANCING PRISON FACILITIES 4 (1999),
available
at
http://www.asca.net/system/assets/attachments/2085/Alternatives_for_Financing_Prison_Fa
cilities-3.pdf?1296161869; Martin E. Gold, The Privatization of Prisons, 28 URB. LAW. 359,
383 n.81 (1996).
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cides who shall gain entry, and although education has a general public
benefit and purpose, the direct beneficiaries are not the public generally,
but the students who attend (and their parents). We will return to a discussion of schools, at the university level, when we look at the public versus
private benefits involved in the expansion of Columbia University.46
The next level down in our hierarchy of public uses is privately owned
utilities. These are privately owned and run, but serve the public generally
and are highly regulated by the government (through public service commissions) in order to assure adequate public service and fair rates. This
“Utility Use” category includes electric utilities, gas utilities, regulated water companies, and telephone companies. Utility companies are not governmental authorities or public benefit corporations; they are private companies. They, therefore, cannot be considered a Pure Public Use, but their
purpose is so clearly for the benefit of the general public that condemnation
on their behalf has long been established as constitutional.47 Condemnations for Utility Use, while not totally free from all criticism rarely are
challenged as not for a public use.48
The second and third use groups, just described, each have private benefits. But it will be the ratio of public to private benefits that determines
where on the hierarchy the use is placed. As we move downward, this
“public vs. private benefit ratio” (as we will call it) will be decreasing.
There may be some projects with both large public benefits and large private benefits, and some with small amounts of each. For the purposes of
the hierarchy proposed here, however, it is not the absolute amount of public benefits that is determinative but rather the ratio between the public and
private benefits that will determine its place in the hierarchy.
Just below takings on behalf of privately run utilities are takings for
“economic development” projects. This “Economic Development Use”
category is large, and needs to be divided into subcategories, which cover a
spectrum of uses. The highest form of Economic Development Use includes projects which will have maximum use of facilities by the general
public and would include uses mentioned above, but are more likely to include uses to be mentioned as we discuss the different types. They will
46. See infra Part III.
47. See, e.g., Bookhart v. Cent. Elec. Power Co-op., 219 S.C. 414, 420 (1951) (stating
“‘The power of eminent domain usually is conferred by the legislature on electric light and
power companies . . . and the erection, maintenance and operation of plants for generating
electricity and distributing the same to the public for light, heat, or power ordinarily is regarded as a public use for which private property may be appropriated.’”) (citation omitted).
48. “Traditionally, courts have concluded that the use of eminent domain for aggregating thin, continuous pieces of land for private utility operations is a public use even for the
primarily private objectives of private parties.” Kelly, supra note 44, at 59-60.
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create large numbers of jobs, substantially increase taxes (property, income
and sales), and provide maximum public benefits. The best of these
projects would also contain most or many of the following beneficial elements and procedural safeguards: (i) the initiating entity is the government;
(ii) a careful plan for implementation is developed by the public sector and
publicly vetted in accord with formal hearing procedures; (iii) the project
could not be accomplished without condemnation (or the threat thereof);
(iv) the private entities are selected in a carefully conducted competition
governed under clear and publicly announced rules;49 (v) the private entities that will receive land for redevelopment will be accountable to the public and the uses to which the land will be put will be adequately controlled
by the public sector entity; and (vi) to the extent reasonably possible, there
is adequate assurance that the project will be built in a timely fashion (and
available remedies if it is not). Requiring an “auction” is not appropriate
because the procedure utilizes a simple comparison of a single number
(e.g., the bid price for a land parcel or a fixed price contract) when the
comparisons will, in fact, be of a number of factors related to the public objectives of land disposition and development, each of which will be given a
weighting in the evaluation as is done in requests for proposals. Although
the government may turn the land and development opportunity over to one
or more private entities to build and manage underground leases or deeds,
typically a substantial number of stores and other facilities will be open for
use by the general public. The companies to whom the land is conveyed
(by deed or lease) most often are private developers, and the designs, construction, and uses would (ideally) be specified or approved by the governmental entity sponsoring the project using comprehensive provisions in
the ground lease, or restrictive and affirmative covenants in the deed. One
of the characteristic features of such dispositions is ongoing involvement of
the governmental entity during the development process. This distinguishes these projects from both highest-bid auctions and regulatory interventions.50 Remedies for failure to implement the proposed project in accordance with a schedule, or otherwise in a timely fashion (subject to needed
force majeure exceptions), could include increased security deposits, dedesignation for some or all parcels, liquidated penalties for lateness, loss of
options, or a right to unwind project components.
Today, the “Economic Development Use” category can, and often does,
include mixed-use complexes of residences, offices, hotels, retail stores,
49. See Martin E. Gold, Economic Development Projects: A Perspective, 19 URB. LAW.
193, 229 (1987).
50. See generally Lynne B. Sagalyn, Public/Private Development: Lessons from History, Research, and Practice, 73 J. AM. PLAN. ASS’N 7-22 (2007).
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and shopping centers. Such large-scale projects, especially in downtown
areas, would have been called urban renewal, slum clearance, or redevelopment projects in the past, especially if they were undertaken in underdeveloped or “blighted” areas. Urban renewal projects also included construction of government and civic buildings such as convention centers,
hospitals, and educational buildings that are open to the public. As we
have discussed, the use of the term “blight” grew out of debates about slum
clearance and legislative efforts to enact a federal urban renewal program,
but it remains a highly significant precondition in undertaking economic
development projects in many states today.
The broad scope of potential uses in the Economic Development Use
category today, in addition to those listed above, would also include movies, restaurants, activities for children, cultural activities, and other forms of
entertainment, as well as, sports arenas and related facilities, convention
centers, and even the occasional manufacturing facility, as in the case of
the taking on behalf of General Motors in the infamous Poletown case.51
Some are large and difficult to undertake. They require governmental assistance not just to assemble all the parcels (some of which may be public
facilities) and eliminate holdouts, but also to add or rebuild infrastructure
above and below ground (e.g., subways and pedestrian connections, utility
systems, etc.). The Times Square/42nd Street project, for example, revived
a significant section of midtown Manhattan and freed it from the grip of
drugs and other crimes.52 Other examples include Brooklyn’s MetroTech,
and the original development of lower Manhattan’s World Trade Center.
The size and variety of uses in economic development projects make
them difficult to categorize. The categories and hierarchy proposed here
starts with maximum public use and maximum public benefit (through containment of the use and procedural elements outlined above) and then slides
down from there. Lesser amounts of public benefit and greater amounts of
private benefit should (at least in theory) tend to lead to more opposition to
the project, more lawsuits, and more scrutiny on the part of the courts. But
without a framework in the common or statutory law to work from, the
courts have had little basis upon which to distinguish these (complex)
projects, one from the other. They lack determinants with which to draw
lines or provide safeguards. This is not a simple sliding scale; yet from one
end of it to the other, there is a huge difference in the ratios of public to
private benefits, which the law could do well to reflect.
51. See Poletown Neighborhood Council v City of Detroit, 304 N.W.2d 455 (Mich.
1981).
52. See generally LYNNE B. SAGALYN, TIMES SQUARE ROULETTE: REMAKING THE CITY
ICON (2001).
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Process and procedure becomes especially important to creating foundational principles for these projects. For example, the degree to which the
government approaches a project with a “‘carefully considered development plan’” that has been created without a private company already chosen, or in mind, can become a factor in finding or not finding a public purpose.53 The government’s development of a plan, internally from its own
staff and resources, is good evidence of a public purpose. Perhaps that is
why in the majority and concurring opinions in Kelo together, the words
“plan” and “planning” are mentioned nearly fifty times, as noted by Nicole
Garnett.54 But it is not always possible to prepare a plan with such purity.
To test interest and practicality it may be necessary to talk to, and solicit
feedback from, the private sector, especially those who are most able to
judge the practical economic feasibility of a government plan. Such contacts can be invaluable, but if condemnation is going to be needed, government officials need to recognize that such private sector involvement
may create risk. For the more input the private entities provide, the more
likely the plan will reflect their thinking and needs, and this may skew the
final plan toward a few such private parties, and possibly just one of them.
The more tilt in that direction, the greater the appearance of a private purpose, with the public purposes being called mere “pretext” and the taking,
“pretextual.” A problem with claims that the public benefits are serving as
a “pretext”55 for the true purpose (i.e. benefits to private entities)56 is that
economic development projects are almost never so black or white as this
term and the term “pretextual” suppose. Courts trying to apply this dichotomy will have to put each project into one of two boxes. But, the vast majority of the projects they will be analyzing will not fit because they will
contain quantities of both public and private benefits. So notwithstanding
the Supreme Court saying in Kelo that a showing of pretext is a valid basis
for a public use challenge,57 it will be very difficult to make much use of
this concept. The Kelo Court seems to accept this when it also says “Quite
simply, the government’s pursuit of a public purpose will often benefit individual private parties.”58 Also, practically speaking, a highly specialized
53. See Kelo v. City of New London, 545 U.S. 469, 478 (2005) (quoting Kelo v City of
New London, 843 A.2d 500, 536 (Conn. 2004)).
54. Nicole S. Garnett, Planning as Public Use?, 34 ECOLOGY L.Q. 443, 444 (2007).
55. Such an allegation was made in Goldstein v. Pataki, 516 F.3d 50, 62 (2d Cir. 2008),
but was dismissed by the Second Circuit.
56. See Daniel B. Kelly, Pretextual Takings: Of Private Developers, Local Governments, and Impermissible Favoritism, 17 SUP. CT. ECON. REV. 173, 174 (2009).
57. “Nor would the City be allowed to take property under the mere pretext of a public
purpose, when its actual purpose was to bestow a private benefit.” Kelo, 545 U.S. at 478.
58. Id. at 485.
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plan with unique requirements might result in fewer bidders or greater entanglement with the preferred private entities, particularly in the absence of
very carefully established procedures and safeguards for the selection of
the developers.
In Kelo, plaintiffs alleged that the role of the private pharmaceutical
company, Pfizer, whose research facility would constitute a major component of New London’s plan, turned it into a project with a private purpose.59 The Justices of the Supreme Court struggled with Pfizer’s role, and
to a lesser extent with that of the developer, Corcoran Jennison. The Court
found that the developer’s role came relatively late, but that Pfizer’s interest appeared at the outset. Justice Kennedy, in concurring, observed that
the developer was chosen out of a group of applicants, and also found that
benefiting Pfizer did not appear to be the primary motivation of the proposal.60 In fact, though, Pfizer’s interest in developing a Pfizer facility predated the project.61 Justice Thomas, in his dissenting opinion, found the
New London plan to be “suspiciously agreeable to the Pfizer Corporation.”62 The majority, however, ultimately deferred to the trial court’s finding that there was “no evidence of an illegitimate purpose” and concluded
that the plan was not adopted to “benefit a particular class of identifiable
individuals.”63
After the case was decided, a Freedom of Information Act request by the
New London newspaper The Day showed that the condemnations were
taken “in large part as a result of extensive Pfizer lobbying of state and local officials” in connection with its offer to build a new headquarters in
New London.64 We can only speculate if this would have made any difference had it been fully known to the five Justices who decided in favor of
New London.
Moving down the hierarchy within the Economic Development Use
group would be projects where the initiative is a joint one between the government and a developer. The government or the developer may have had
the initial idea for the development. The developer might be interested due
to the location and/or because the project is geared to their special capacity
and experience. The developer may also be, or become, interested because
of the government assistance that it believes is available. This description
59. Id.
60. Id. at 492.
61. Id. at 473.
62. Id. at 506 (Thomas, J., dissenting).
63. Id. at 478 (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984)).
64. See Ilya Somin, Controlling the Grasping Hand: Economic Development Takings
After Kelo, 15 SUP. CT. ECON. REV. 183, 236 (2007); Ted Mann, Pfizer’s Fingerprints on
the Fort Trumbull Plan, THE NEW LONDON DAY, Oct. 16, 2005.
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fits the Atlantic Yards project in Brooklyn, a multi-billion dollar, twentytwo acre project in downtown Brooklyn that includes large amounts of
housing and retail space, a new basketball arena, and public open space.
The project was originally conceived by Bruce Ratner and his Forest City
Ratner Companies and was driven by them. It was then assisted by the
New York State Urban Development Corporation, which does business as
the Empire State Development Corporation (ESDC), and turned it into a
jointly managed project. The Second Circuit noted this origin and compared the case to New London’s project, saying “unlike in Kelo, the Atlantic Yards Project was allegedly proposed in the first instance by Ratner
himself.”65 But the Second Circuit, rather than trying to determine how the
Supreme Court, post-Kelo, would have come out on these facts, instead focused on two public purpose factors, both of which the appellants had conceded: first, that the Project targets a long-blighted area, and second, that
the Project had substantial public benefits in the form of a publicallyowned arena (for an NBA basketball team), public open space, substantial
affordable housing, and improvements to the mass transit system. It played
down the private benefits to Ratner by finding that appellants “failed to allege any specific examples of illegality” or “any specific illustration of improper dealings between Mr. Ratner and the pertinent government officials.”66 On the charge that the private benefits and pretext were worse
than in Kelo because Ratner proposed and drove the whole Project, the
Second Circuit cited New York law: “However, here, New York long ago
decided by statute not to restrict the ESDC’s mandate to those ‘projects in
which it is the prime mover.’”67
It then rejected the request of appellants for a “full judicial inquiry into
the motivation” of officials who supported the Project as being “an exercise
as fraught with conceptual and practical difficulties as with statesovereignty, and separation-of-power concerns.”68 The Second Circuit also
noted that in New York the removal of blight is a fully separate leg upon
which public purpose can be based, without regard to the uses to be made
of the site. The court cited its own decision in the Times Square project
case,69 to state the same principle illustrated by Berman and Rosenthal, that
65. Goldstein v. Pataki, 516 F.3d 50, 64 (2d Cir. 2008).
66. Id.
67. Id. (quoting N.Y. UNCONSOL. LAW § 6252 (McKinney 2007) (directing the ESDC to
“encourage[e] maximum participation by the private sector of the economy”); E. Thirteenth
St. Cmty. Ass’n v. N.Y. State Hous. Fin. Agency, 218 A.D.2d 512, 513 (N.Y. App. Div.
1995)).
68. Id. at 63.
69. Rosenthal & Rosenthal, Inc. v. New York State Urban Dev. Corp., 771 F.2d 44, 45
(2d Cir. 1985).
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“the redevelopment of [a] blighted area,” even standing alone, represents a
“classic example of a taking for a public use.”70 It thereby joined other
New York decisions that place New York in an even more favorable position for government exercise of eminent domain power than Berman and
Kelo would.71
Whether the initial idea is from the government or the private sector,
New York State and New York City agencies may decide to use a joint approach with the private sector because their projects are heavily site specific and often (at least in New York City) need to be shoe-horned into a
dense and already developed location. This is done also because of the
time and costs involved in the many steps that need to be surmounted in the
approval process. Having a developer in tow helps craft a detailed project
and make it adequately specific for full environmental review under the
State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR). The Environmental Impact Statements (EIS)
required by these laws cost many hundreds of thousands of dollars and can
go over a million dollars, so it helps to have a deep-pocket entity committed to a project early on that can foot the bill. A draft EIS is needed before
the City Uniform Land Use Review Process (ULURP) can start, a process
that generally takes half a year or longer. The City or State may also solicit
the City’s planning department jointly with the developer to obtain zoning
changes needed for the proposed project.
Consequently, where the original idea comes from is not as important as
how the idea is used, and what the results turn out to be. The project may
be improved with input from private entities. It may become more likely to
be successful, and it may also be better able to obtain necessary financing.
It might also include more components that make it operate better. So the
number of contacts between the public and private sectors may not always
be evidence of contrivance or the bending of all benefit toward the private
sector. The key is the project itself, i.e., the ratio of public benefits to private sector benefits. In economic development projects, private sector
companies or developers almost always play a role. But we must assess
whether the facilities to be built are just for the use and benefit of those
same companies? In this regard, the relative inclusion of public uses, open
space, recreational facilities, and better public transportation connections
do count; and retail space counts more than general office space, and both
are likely to generate more public benefits than would a facility for a single
company.
70. Id. at 46.
71. The Supreme Court denied the petition for writ of certiorari. See Goldstein v. Pataki,
554 U.S. 930 (2008).
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So located somewhat further down the Economic Development Use ladder (offering fewer public benefits and containing less than all of the elements listed above) are projects where the initiative comes from a private
company and it seeks to build a new facility solely for itself. To get governmental assistance, the company will typically offer more jobs than currently exist and/or a better tax base once the project is completed. The
company may threaten to leave the city if it does not receive the assistance
and/or subsidies it seeks. In some cases these elements may be combined.
Big box location projects and single manufacturer expansion projects are
such examples. The General Motors plan in Poletown is also a good example. In the Poletown case, Detroit was threatened by General Motors relocating one of its factories out of the City unless the City provided it with
a site for a new factory.72 The City, fearful of the loss, condemned several
hundred acres in a residential area known as Poletown to satisfy GM’s requirements. The City used eminent domain to assemble that site following
approval of the Project by the Michigan Supreme Court. A thousand
homes and businesses were lost. And in the end, the factory GM built generated fewer jobs and less revenue than had been predicted by the City.73
Subsequently the Michigan Supreme Court reversed itself and overruled
Poletown.74
Relying entirely on the test used in the Poletown dissent and describing
their decision as a return to the law as it existed before Poletown, the Michigan Supreme Court found the application of eminent domain unconstitutional because: (1) the condemnations were not strictly necessary for the
realization of the public benefit as is the case with privately built roads or
railroads; (2) the private entity that would receive the condemned land was
not sufficiently accountable to the public for the use of the land; and (3)
there were no other facts of “public significance,” such as blight elimination, which justified the takings as a public use.75
72. Poletown Neighborhood Council v City of Detroit, 304 N.W.2d 455, 457 (Mich.
1981).
73. See Somin, supra note 64, at 194-95.
74. Because Poletown’s conception of a public use – that of “alleviating unemployment and revitalizing the economic base of the community” has no support in
the Court’s eminent domain jurisprudence before the Constitution’s ratification,
its interpretation of “public use” in art. 10, § 2 [of the Michigan constitution] cannot reflect the common understanding of that phrase among those sophisticated in
the law at ratification. Consequently, the Poletown analysis provides no legitimate support for the condemnations proposed in this case and, for the reasons
stated above, is overruled.
Cnty. of Wayne v. Hathcock, 684 N.W.2d 765, 787 (Mich. 2004).
75. See id. at 770-71.
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In Yonkers Community Development Agency v. Morris,76 the New York
Court of Appeals reviewed the question of whether a taking by the Community Development Agency of Yonkers for the expansion of the Otis Elevator Company was for a public purpose. Otis was chosen as the sponsor
before any public hearings were held. Otis had also indicated it would
leave Yonkers if suitable land was not found for its expansion. The condemned land was adjacent to Otis’ existing facilities. The City had signed
an agreement with Otis before the condemnation of the land. The court explained that given Otis’s ongoing economic importance to the community,
these actions should be regarded as “mere irregularities cured by the fact
that the hearings were actually held.”77 The court also found unremarkable
the fact that Otis would get the condemned land for a price which is “a
fraction of that paid to the defendants and the other owners in condemnation.”78
The Community Development Agency maintained that the land taken
was substandard. Land found to be blighted or substandard, the court said,
can be taken for urban renewal projects in New York without there being a
separate public purpose “just as it would be if it were taken for a public
park, public school or public street.”79 On the other hand, the court noted
“if property has not been determined to be substandard in an urban renewal
context, it may not be taken in eminent domain unless it is proved that its
taking was for another public purpose and, if there was also a private benefit involved, that the public purpose was dominant.”80
When it turned to the question of whether blight data or facts supporting
the determination had been provided, incredibly enough, it found that none
had been provided:
Here, other than the agency’s bare pleading of its “substandard” finding, it
provided no further data as to the condition of the area, except for the
general statement that at least 50% of the structures in the area are “substandard,” a figure which, as defendants point out, did no more than coincide with the figure found in an earlier comprehensive city plan . . . . The
agency has not indicated in any manner the grounds upon which it concluded that the land is presently substandard.81
Yet, the court held for the condemning Agency. Their basis for so holding was that the condemned landowners did not adequately raise the issue
76.
77.
78.
79.
80.
81.
37 N.Y.2d 478 (1975).
Id. at 482.
Id. at 483.
Id. at 482.
Id.
Id. at 484-85.
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of the “quality of the land taken” although it conceded that they did state
that it was “not substandard.” The court asserted that the landowners “subordinated” the substandard issue to their argument that benefitting a large
manufacturer, Otis Elevator, was not a public purpose. This was probably
done because there were no facts or data that they could dispute, and because they were aware that agency findings of blight were not subject to
court reversal.82 Because of their “subordination of a valid issue” and because the taking had already occurred, the court held that the defendants
were not entitled to relief.83
We believe that this decision should no longer be followed. The project
originated with one company, albeit an important one to the City, solely for
its own benefit, together with a threat to leave the City if it did not get its
way. In addition, it received substantial land price subsidies. If the Court
was relying on job creation for finding public purpose, it failed to show
any: no job data is provided. The word “jobs” is not mentioned even once
in the decision. What the court said on this point (in one of its many “if we
assume” sentences) is:
Therefore, if we assume that the land here involved was substandard, as
found by the Yonkers City Council and its Planning Board, it would be no
defense to its condemnation that Otis openly expressed a desire to acquire
it to assure its own continued economic viability in Yonkers. It would not
then be necessary, as a precondition to the taking, to determine that the
public benefit in assuring the retention of Otis as an increased source of
employment opportunity in Yonkers was sufficient to outweigh the benefit that may be conferred on Otis.84
Since they subsequently conclude that there was in fact was no support
for the Agency’s claim of blight, the assumption does not hold, and it
would therefore be necessary (in the court’s own words) “as a precondition
to the taking” to show that the public benefit outweighs the private benefit.
But there is no such showing, nor any discussion of the matter. Even the
court’s simple reference to retention of Otis as an increased employment
“opportunity” is not supported with a single sentence. And, the concept of
accountability to the public for the use of the land (included in the Michigan Supreme Court’s decision in Hathcock discussed above) which here
would require some level of assurance of actual job creation (through e.g.,
binding agreements and penalties) appears to have been beyond the horizon
of thought in the development of the Project or the thinking of the court.
82. The landowners thought they would have to lose on the blight issue because of the
“omnipotence” they believed urban renewal agencies had with respect to it. Id. at 486.
83. Id. at 487.
84. Id. at 482.
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The facts in this 1975 case do not provide the minimum ratio of public to
private benefits needed for constitutionality.
Toward the bottom of our hierarchy are: (1) so-called one-to-one transfers in which a single company benefits to the disadvantage of another individual corporation through the help of the government; (2) projects done
solely to obtain a tax benefit with no meaningful change in use or other
significant public benefit; and (3) tax increment financings (TIF).
The first group in this category, one-to-one transfers, engenders many
lawsuits; and it is more likely that the courts will put their collective feet
down here because there is relatively little public benefit and in a number
of cases a strong appearance, or reality, of private benefit. This is particularly true when the benefited company has an alternative that does not require eminent domain. For example, in 99 Cents Only Stores85 and Southwestern Illinois Development Authority (SWIDA),86 the courts found other
reasonable options to be available, and held both takings to be unconstitutional. In the first case, 99 Cents Only, Costco wished to expand one of its
stores and demanded that the redevelopment agency condemn a leasehold
interest to provide for the expansion. The district court found that Costco
could have expanded on its own by simply going in another direction.87 In
the SWIDA case, a racetrack sought to expand, at the expense of a neighbor’s recycling facility, so it could have more land for parking. The court
found that the construction of a garage by the racetrack would solve its private need and that eminent domain was not available.88 There are many
other cases with the same result.89
The most typical cases in the second group, tax-enhancement projects,
include projects that assist the development of big box retail stores like
Wal-Mart, Costco, Home Depot, and large drug stores and could be called
“big box projects” or “suburban mall projects.” The local municipality’s
purpose is principally to increase property and sales taxes. However, some
communities assist the big box builders out of fear that if they do not get
the store in their jurisdiction, the store will move to a neighboring town,
provide no benefits and do harm to the smaller stores in town that will find
85. 99 Cents Only Stores v. Lancaster Redev. Agency, 237 F. Supp. 2d 1123 (C.D. Cal.
2001).
86. Sw. Ill. Dev. Auth. (SWIDA) v. Nat’l City Envtl., 768 N.E.2d 1 (Ill. 2002).
87. See 99 Cents Only Stores, 237 F. Supp. 2d at 1129.
88. See SWIDA, 768 N.E.2d at 10.
89. See, e.g., Cottonwood Christian Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d
1203 (C.D. Cal. 2002) (granted a preliminary injunction blocking the use of condemnation
for development of a discount retailer, expected to be Costco, at the expense of church seeking to build a 4,700 seat auditorium with surrounding buildings); Baily v. Myers, 76 P.3d
898 (Ariz. Ct. App. 2003).
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it difficult to compete. In addition to condemning land for the store, sometimes the municipality uses condemnation powers to construct connecting
exits and entrances to the nearest highways in order to facilitate the increased road traffic that will be generated. One of the worst examples of
overreach in the tax-enhancement category comes out of a project in a
middle-class suburb of Cleveland named Lakewood. In an attempt to enhance its taxes, Lakewood officials and developers agreed to develop a
shopping mall and an upscale residential facility. A blight finding was required to acquire properties in a portion of the project area with owneroccupied homes. To be able to make the finding, homes without three bedrooms, an attached two-car garage, and central air-conditioning could be
declared blighted. Legal and political battles ensued, and the town in a ballot initiative finally put an end to the whole project.90
In the third group, TIF projects, the local public development agency issues bonds to create improved infrastructure or facilities within a designated district. Condemnation is used to facilitate a private-enterprise development and these new improvements generate increasing property taxes
that are used to pay both interest and principal on the bonds. The municipality does not receive the property taxes generated by the project until the
bonds are completely paid off, but neither will it need to use any of its own
on-budget financial resources for the project. These projects are controversial for several reasons, including the segregation of property tax revenues
for one bond issuance, and the conveyance of land to a private firm or firms
for narrow economic development purposes. While the bond proceeds help
create infrastructure improvements, the improvements are generally targeted toward the private betterments.91
Local governments have strong incentives to undertake TIF projects.92
TIF projects involve little or no direct financial risk for the local government (which has generally no legal obligation to repay the debt unless it
has contractually obligated itself) and because the debt does not, in most
states, count against local debt limits, they can increase the share of tax
revenues dedicated to their municipal purposes. The TIF may also leverage
federal dollars. If a finding of blight is required, it is typically under a statute that has a broad definition of blight.93 In fact, in TIF statutes, the
90. See Pritchett, supra note 15, at 911-12; see also Blaine Harden, In Ohio, A Test for
Eminent Domain: Rights vs. Renewal at Stake in Case, WASH. POST, June 22, 2003, at A03;
Bert Gall, Beating Bogus ‘Blight’ in Lakewood, Ohio, 13 LIBERTY & L., Apr. 2004,
http://www.ij.org/publications/liberty/2004/13_2_04_b.html.
91. See generally Richard F. Dye & David F. Merriman, The Effects of Tax Increment
Financing on Economic Development, 47 J. URBAN ECON. 306-28 (2000).
92. See Gordon, supra note 3, at 315; Lefcoe, After Kelo, supra note 15, at 59-64.
93. See Lefcoe, After Kelo, supra note 15, at 59.
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“states definition of blight are so broad and vague that they could apply to
practically every neighborhood in the country.”94 Goshorn, Gordon, and
Lefcoe cite the Missouri and Ohio statutes as good examples of such statutes.95 The Missouri statute, for example, includes unsanitary and unsafe
conditions, the existence of conditions that endanger property by fire or
other causes, or retards the provision of housing accommodations, or constitutes an economic or social liability or a menace to public health, morals,
or welfare.96 The Ohio statute includes age of the building, obsolescence,
incompatible land use relationships, and excessive dwelling unit density.97
Both include “inadequate street layout.” Statutes like these are written to
allow blight findings to be made easily, so projects can be authorized. In
addition, compliance with the statutory definition is left to the same agencies that form and administer the TIF.98
California initiated the use of TIFs in the early 1950s to generate matching funds for federal urban renewal projects when voters turned down local
bond initiatives.99 Economic pressures then pushed the vast majority of
states to enact their own TIF statutes, and after the federal government shut
down its urban renewal program in 1974, TIF grew dramatically in importance to become the dominant means by which cities funded their urban revitalization and economic development ambitions.100 Though the linkage
between an area’s TIF potential and its blight was usually weak, TIF statutes nevertheless would draw heavily on “blight” findings. Older statutory
definitions of blight based on public health, safety, and welfare taken from
urban contexts were expanded to accommodate the new economic development projects with concepts like insufficient tax generation, slow economic growth, and under-utilization of the land, as in the Missouri and
Ohio statutes.101 In the process, blight requirements were converted from
restrictive standards into very broad standards so as to intentionally facilitate these projects and any condemnations that might be required. Local
governments beguiled by the prospect of capturing federal grants or a larg94. Id. (citing Dana Berliner, The Condemnation Landscape Across the Country Post
Kelo, in ALI-ABA COURSE OF STUDY: EMINENT DOMAIN AND LAND-VALVE LITIGATION,
433, 439 (2007)).
95. Gordon, supra note 3, at 314; Julie A. Goshorn, In a TIF: Why Missouri Needs Tax
Increment Financing Reform, 77 WASH. U. L.Q. 919, 922-26 (1999); Lefcoe, After Kelo,
supra note 15, at 59-61.
96. MO. ANN. STAT. § 99.805(1) (2008).
97. OHIO REV. CODE ANN. § 1728.01 (2001).
98. See Timothy Sandefur, The “Backlash” So Far: Will Americans Get Meaningful
Eminent Domain Reform?, 2006 MICH. ST. L. REV. 709, 722-25.
99. See Gordon, supra note 3, at 313; Goshorn, supra note 95, at 925.
100. See Goshorn, supra note 95, at 925; Sagalyn, supra note 13, at 429-41.
101. See Gordon, supra note 3, at 314, 318; Goshorn, supra note 95, at 929-30.
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er tax base have every incentive to define blight expansively.102 Local officials and developers and other private enterprises, in close working relationships, have made good use of these expansive, vague statutes103 and
court review has been minimal, with rejections being the rare exception.104
III. BLIGHT AND PUBLIC PURPOSE IN COLUMBIA’S EXPANSION IN
MANHATTANVILLE
The planned condemnation of land to create a third campus for Columbia University in the Manhattanville section of Harlem was held to be constitutional by the New York Court of Appeals,105 reversing a decision of
the Appellate Division106 that held it to be unconstitutional. Columbia’s
main campus in Morningside Heights, Manhattan, is surrounded by intense
development which effectively walls the campus and prevents expansion.
Columbia has been seeking to expand and add to its research and graduate
school programs. Without this growth, it and the State believe, it cannot
maintain its position as one of the leading educational and cultural institutions in the world.107 Columbia’s square footage per student, at three hundred twenty-six gross square feet per student, is lower than any of its peer
institutions.108
To assist Columbia, the Empire State Development Corporation
(ESDC), acting for the State of New York on the seventeen-acre Project,
authorized the Project under its General Project Plan as both a “land use
improvement project,” which required a finding of blight, and as a “civic
project,” which required no finding of blight. As a result, the Appellate
Division had to grapple with two major issues. One was the finding of
blight, and the other was whether the use of eminent domain for a single
educational entity is for a public purpose. The focus under the “civic
project” basis for authorization was whether the use of eminent domain for
the sole benefit of Columbia University, a private institution of higher
learning and research, was a public purpose. On this issue, the Appellate
Division firmly held no:
102.
103.
104.
105.
106.
107.
See Gordon, supra note 3, at 315; see also Goshorn, supra note 95, at 923.
Gordon, supra note 3, at 315.
Gordon, supra note 3, at 323; Sandefur, supra note 98, at 725.
Kaur v. N.Y. State Urban Dev. Corp., 15 N.Y.3d 235 (2010).
Kaur v. N.Y. State Urban Dev. Corp., 72 A.D.3d 1 (N.Y. App. Div. 2009).
See generally N.Y. STATE URBAN DEV. CORP. D/B/A EMPIRE STATE DEV. CORP., COLUMBIA UNIVERSITY, UNIVERSITY EDUCATIONAL MIXED-USE DEVELOPMENT, LAND USE IMPROVEMENT & CIVIC PROJECT GENERAL PROJECT PLAN (2008).
108. Id. at 10.
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The use of eminent domain should also be rejected on the grounds that
Columbia’s expansion is not a “civic project.” . . . The petitioners correctly contend that within the definition of Unconsolidated Laws § 6253
(6)(d) (UDCA § 3 [6][d]), a private university does not constitute facilities for a “civic project.” . . . Here, Columbia is virtually the sole beneficiary of the Project. This alone is reason to invalidate the condemnation
especially where, as here, the public benefit is incrementally incidental to
the private benefits of the Project.109
The Court of Appeals in Kaur had a very different view of the value of
the University’s expansion. In connection with the Appellate Division’s
determination that the expansion of a private university does not qualify as
a “civic purpose,” the Court of Appeals found that, “[t]his conclusion [of
the Appellate Division] does not have statutory support. Indeed, there is
nothing in the statutory language limiting a proposed educational project to
public educational institutions.”110 The Court of Appeals went on to argue
that:
The proposed Project here is at least as compelling in its civic dimension
as the private [Atlantic Yards] development in Matter of Develop Don’t
Destroy (Brooklyn) v. Urban Dev. Corp. 874 N.Y.S.2d 414 (1st Dept
2009)). Unlike the Nets basketball franchise, Columbia University,
though private, operates as a nonprofit educational corporation. Thus, the
concern that a private enterprise will be profiting through eminent domain
is not present. Rather, the purpose of the Project is unquestionably to
promote education and academic research while providing public benefits
to the local community. Indeed, the advancement of higher education is
the quintessential example of a “civic purpose” (see Cornell Univ. v Bagnardi, 68 NY2d 583, 593 (1986) (recognizing that schools, both public
and private, “serve the public’s welfare and morals”)). It is fundamental
that education and the expansion of knowledge are pivotal government interests. The indisputably public purpose of education is particularly vital
for New York City and the State to maintain their respective statuses as
global centers of higher education and academic research.111
The argument being made is that benefiting a not-for-profit educational
corporation is not benefiting private enterprise, therefore the use of eminent domain for such an institution is not for a private purpose. Education
and the generation of knowledge are “government interests,” thus making
their expansion a public purpose. The degree to which the general public
benefits from the expansion of a renowned university obviously depends on
one’s own values and perception of what such universities do. Yet it
109. Kaur, 72 A.D.3d at 20.
110. Kaur, 15 N.Y.3d at 258.
111. Id.
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should be accepted by most everyone that a public university would be
more deserving of the application of eminent domain for an expansion than
would be the case for a private college or university. To make findings of
public purpose for the Project as a whole more certain, the Project, as the
Court of Appeals noted, also includes two acres of “park-like and
landscaped space,” upgrades to transit infrastructure, financial assistance to
a small new park on Hudson River, and the creation of a large number of
construction and permanent jobs—calling these “civic benefits.”112
We have already noted that the removal of blight in New York is itself a
public purpose and can therefore be the sole basis for the use of eminent
domain. Since Yonkers,113 the courts have recognized blight as an independent basis for condemnation on the grounds that:
[T]he removal of urban blight is a proper, and, indeed, constitutionally
sanctioned, predicate for the exercise of the power of eminent domain. It
has been deemed a “public use” within the meaning of the State Constitution’s Takings Clause at least since Muller,114 and is expressly recognized
by the Constitution as a ground for condemnation.115
Blight determinations in New York by the ESDC are not based on a strict
definition provided by its statute,116 but on case law. The application and
practice is quite expansive. The expansive result is not all that dissimilar to
that with TIF statutes that have extremely broad definitions of blight.117
112. See id.
113. Yonkers Cmty. Dev. Agency v. Morris, 37 N.Y.2d 478 (1975).
114. In re N.Y.C. Hous. Auth. v. Muller, 270 N.Y. 333 (1936).
115. Goldstein v. N.Y. State Urban Dev. Corp., 13 N.Y.3d 511, 524 (2009).
116. New York Urban Development Corporation Act, N.Y. UNCONSOL. LAWS, §§ 62516285, 6260. For a land use improvement project, the Corporation must find:
1) That the area in which the project is to be located is a substandard or insanitary
area, or is in danger of becoming a substandard or insanitary area and tends to impair or arrest the sound growth and development of the municipality;
2) That the project consists of a plan or undertaking for the clearance, replanning,
reconstruction and rehabilitation of such area and for recreational and other facilities incidental or appurtenant thereto;
3) That the plan or undertaking affords maximum opportunity for participation by
private enterprise, consistent with the sound needs of the municipality as a whole.
Id. at § 6260(c)(1)-(3).
117. In Yonkers, the Court of Appeals established the following palette of possibilities for
findings of blight in New York:
Many factors and interrelationships of factors may be significant. These may include such diverse matters as irregularity of the plots, inadequacy of the streets,
diversity of land ownership making assemblage of property difficult, incompatibility of the existing mixture of residential and industrial property, overcrowding,
the incidence of crime, lack of sanitation, the drain an area makes on municipal
services, fire hazards, traffic congestion, and pollution. It can encompass areas in
the process of deterioration or threatened with it as well as ones already rendered
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Abetting and encouraging this loose approach is the deference given by the
courts to the definitions and determinations made by the condemning agencies. New York courts generally cite the State Constitution118 to take the
position that, “[t]he Constitution accords government broad power to take
and clear substandard and insanitary areas for redevelopment. In so doing,
it commensurately deprives the Judiciary of grounds to interfere with the
exercise.”119
But in Columbia’s Manhattanville project, the Appellate Division undertook a thorough review of the ESDC blight findings. The Appellate Division was able to find language in prior cases to support a review by it of the
ESDC findings:
useless, prevention being an important purpose. It is “something more than deteriorated structures. It involves improper land use. Therefore its causes, originating many years ago, include not only outmoded and deteriorated structures, but
unwise planning and zoning, poor regulatory code provisions, and inadequate provisions for the flow of traffic.”
Yonkers, 37 N.Y.2d at 483 (quoting John F. Cook, Battle Against Blight, MARQ. L. REV.
444, 445 (1960)). The courts in New York rely on this language in the absence of a codified
definition of blight. Kaitlyn Piper, Note, New York’s Fight Over Blight: The Role of Economic Underutilization in Kaur, 37 FORDHAM URB. L.J. 1149, 1157 (2010).
118. “Subject to the provision of this article, the legislature may provide in such manner,
by such means and upon such terms and conditions as it may prescribe for . . . the clearance,
replanning, reconstruction and rehabilitation of substandard and insanitary areas, or for both
such purposes, and for recreational and other facilities incidental or appurtenant thereto.”
N.Y. CONST. art. XVIII, § 1 (amended 1965). New York’s General Municipal Law has its
own definitions:
(a) “Blighted area” means an area within a municipality in which one or more of
the following conditions exist: (i) a predominance of buildings and structures
which are deteriorated or unfit or unsafe for use or occupancy; or (ii) a predominance of economically unproductive lands, buildings or structures, the redevelopment of which is needed to prevent further deterioration which would jeopardize
the economic well being of the people; and
(g) “Project area” means an area of a community that is a blighted area, the redevelopment of which is necessary to effectuate the purposes of this article. A
project area need not be restricted to buildings, improvements or lands that are detrimental or inimical to the public health, safety or welfare, but may consist of an
area in which such conditions predominate and adversely affect the entire area. A
project area may include lands, buildings or improvements which are not detrimental or inimical to the public health, safety or welfare, but whose inclusion is
found necessary by the municipality for the effective redevelopment of the area of
which they are a part. All lands, buildings or improvements included in a project
area shall be necessary for effective redevelopment and shall not be included for
the purposes of obtaining the allocation of tax increment revenue without clear
justification for their inclusion. A project area shall not include land utilized for
agricultural production.
N.Y. GEN. MUN. LAW § 970-c(a), (g).
119. Kaur v. N.Y. State Urban Dev. Corp., 15 N.Y.3d 235, 253 (2010).
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[E]ven where the law expressly defines the removal or prevention of
‘blight’ as a public purpose and leaves to the agencies wide discretion in
deciding what constitutes blight, facts supporting such determination
should be spelled out.” (Quoting from Yonkers Community Dev. Agency v.
Morris, 37 N.Y.2d 478, 484 (1975), appeal dismissed 423 U.S. 1010
(1975). Furthermore, “[c]arefully analyzed, it is clear that in such situations, courts are required to be more than rubber stamps in the determination of the existence of substandard conditions in urban renewal condemnation cases. The findings of the agency are not self-executing. A
determination of public purpose must be made by the courts themselves
and they must have a basis on which to do so.” (Quoting from Yonkers,
37 N.Y.2d at 485; see Matter of City of Brooklyn [Long Is. Water Supply]
143 N.Y. 596, 618 (1894), affd 166 U.S. 685 (1897) (“But whether the
use, for which the property is to be taken, is a public use, which justifies
its appropriation, is a judicial question; upon which the courts are free to
decide”).120
Once they had determined that they had standing to review the findings,
they dove in with gusto, providing a judicial view of blight findings not
generally seen in New York, stating “the blight designation in the instant
case is mere sophistry. It was utilized by ESDC years after the scheme was
hatched to justify the employment of eminent domain, but this Project has
always primarily concerned a massive capital project for Columbia.”121
Instead of deferring to the State Constitution and prior court decisions in
New York thereon, they analyzed Kelo, comparing the facts in the two cases and picking up on Justice Kennedy’s language in his concurring opinion
in Kelo.
Justice Kennedy specifically acknowledged that, “[t]here may be private
transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause.” Although he declined
to conjecture as to what sort of case might justify a more demanding standard of scrutiny, beyond finding the estimated benefits there not “de minimis,” it was the specific aspects of the New London planning process
that convinced him to side with the majority in deference to the legislative
determination.122
Then they compared the two projects for favoritism and the degree to
which the projects were driven by and controlled by the beneficiary of the
condemnation:
120. Kaur, 72 A.D.3d at 10.
121. Id.
122. Id. at 13 (quoting Kelo v. City of New London, 545 U.S. 469, 493 (2005)).
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The contrast between ESDC’s scheme for the redevelopment of Manhattanville and New London’s plan for Fort Trumbull could not be more
dramatic. Initially, it must be noted that unlike Fort Trumbull, Manhattanville or West Harlem as a matter of record was not in a depressed economic condition when EDC [New York City Economic Development
Corporation] and ESDC embarked on their Columbia-prepared and- financed quest. The 2002 West Harlem Master Plan stated that not only
was Harlem experiencing a renaissance of economic development, but
that the area had great development potential that could easily be realized
through rezoning. Again, its bears repeating that the only purportedly unbiased or untainted study that concluded that Manhattanville was blighted,
and thus in need of redevelopment, was not completed until 2008: the
point at which the ESDC/Columbia steamroller had virtually run its
course to the fullest.123
The Appellate Division found that since the sole purpose of the State and
City’s assistance to the project was to provide for the University’s expansion, they were acting to implement a private purpose:
Indeed, Columbia underwrote all of the costs of studying and planning for
what would become a sovereign-sponsored campaign of Columbia’s expansion. This expansion was not selected from a list of competing plans
for Manhattanville’s redevelopment. Indeed, the record demonstrates that
EDC committed to rezoning Manhattanville, not for the goal of general
economic development or to remediate an area that was “blighted” before
Columbia acquired over 50% of the property, but rather solely for the expansion of Columbia itself. . . . The record shows no evidence that ESDC
placed any constraints upon Columbia’s plans, required any accommodation of existing or competing uses, or any limitations on the scale or configuration of Columbia’s scheme for the annexation of Manhattanville.
Thus, the record makes plain that rather than the identity of the ultimate private beneficiary being unknown at the time that the redevelopment scheme was initially contemplated, the ultimate private beneficiary
of the scheme for the private annexation of Manhattanville was the progenitor of its own benefit. The record discloses that every document constituting the plan was drafted by the preselected private beneficiary’s attorneys and consultants and architects, from the General Project Plan, the
Special District Zoning Text, the City Map Override Proposal, and the
Land Use Restrictions to all phases of the environmental review. Even
the blight study on which ESDC originally proposed to base its findings
was prepared by Columbia’s consultant AKRF, nominally retained by
ESDC for the purpose, but which retention and use by ESDC was roundly
condemned by this Court in Tuck-It-Away I.124
123. Id. at 14-15.
124. Id.
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Although the private entity was in fact never hidden in the Manhattanville project, the overall private purpose and self-serving findings of blight
merge and were nearly fused in the view of the court:
Having committed to allow Columbia to annex Manhattanville, the EDC
and ESDC were compelled to engineer a public purpose for a quintessentially private development: eradication of blight. . . . This conduct continued when ESDC authorized AKRF to use a methodology biased in Columbia’s favor. Specifically, AKRF was to “highlight” such blight
conditions as it found, and it was to prepare individual building reports
“focusing on characteristics that demonstrate blight conditions.” This
search for distinct “blight conditions” led to the preposterous summary of
building and sidewalk defects compiled by AKRF, which was then accepted as a valid methodology and amplified by Earth Tech. Even a cursory examination of the study reveals the idiocy of considering things like
unpainted block walls or loose awning supports as evidence of a blighted
neighborhood. Virtually every neighborhood in the five boroughs will
yield similar instances of disrepair that can be captured in close-up technicolor.
No rationale was presented by the respondent for the wholly arbitrary
standard of counting any lot built to 60% or less of maximum FAR as
constituting a blighted condition. To the contrary, the New York City
Department of City Planning uses a 50% standard to identify “underbuilt”
lots . . . . The difference between AKRF’s 60% standard and the petitioners’ “no blight” study’s 40% standard is the difference between 39% of
the area and 20% of the area being counted as underutilized.125
They not only rejected the blight findings in the instant case, but also the
whole idea that takings can be based on underutilization since that transforms blight removal from being the elimination of harmful social and economic conditions to affirmatively requiring the ultimate commercial development of all property.126 They concluded that the taking on behalf of
Columbia was not for the public’s benefit but for the benefit of “a private
elite education institution” and that this conflicts with Kelo on virtually
every level, thereby rendering the taking unconstitutional.127
In New York, however, the Court of Appeals has the final say, and it
slammed the Appellate Division and pulled the rug out from under its de125. Id. at 16-17.
126. See id. at 18-20 (citing Gallentin Realty Dev., Inc. v. Borough of Paulsboro, 924
A.2d 447, 460 (N.J. 2007)) (“under that approach, any property that is operated in a less
than optimal manner is arguably ‘blighted.’ If such an all-encompassing definition of
‘blight’ were adopted, most property in the State would be eligible for redevelopment”); In
re Condemnation by Redevelopment Auth. of Lawrence Cnty., 962 A.2d 1257, 1265 (Pa.
2008), appeal denied, 973 A.2d 1008 (Pa. 2009)); Kaur, supra note 105, at 19.
127. Kaur, 72 A.D.3d at 20.
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terminations. The Court of Appeals held that a court may only substitute
its own judgment for that of the legislative body authorizing the project
when such judgment is “irrational or baseless:”128
Thus given our precedent, the de novo review of the record undertaken by
the plurality of the Appellate Division was improper. On the “record
upon which the ESDC determination was based and by which we are
bound,”129 it cannot be said that ESDC’s finding of blight was irrational
or baseless. Indeed, ESDC considered a wide range of factors including
the physical, economic, engineering and environmental conditions at the
Project site . . . . Accordingly, since there is record support—“extensively
documented photographically and otherwise on a lot-by-lot basis”130 …—
for ESDC’s determination that the Project site was blighted, the Appellate
Division erred when it substituted its view for that of the legislatively designated agency.131
This “irrational or baseless” standard would appear to be even more difficult to establish than the “arbitrary and capricious” standard otherwise used
for review of governmental and agency decisions in New York State
which, itself, is very difficult to show.132 This means that effectively there
is no review of blight findings in New York.
IV. ATTEMPTED REFORMS
In the majority opinion in Kelo v. City of New London, Justice Stevens
sent a clear message to states that the opportunity to reform the statutory
and procedural aspects of eminent domain belonged to them. “We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power.”133 State legislatures wasted
little time in responding to the immediate and passionate backlash following the U.S. Supreme Court’s decision upholding the economically depressed City of New London’s exercise of its eminent domain powers in
the furtherance of economic development. Although blight had not been an
issue in Kelo because the City did not predicate its taking of Susette Kelo’s
property and that of her neighbors on that basis, the intensity and broad-
128.
129.
130.
131.
132.
133.
Kaur v. N.Y. State Urban Dev. Corp., 15 N.Y.3d 235, 254 (2010).
Id. at 254 (citing In re Levine v N.Y. State Liq. Auth., 23 N.Y.2d 863, 864 (1969)).
Id. at 255.
Id.
This latter review standard is known as an Article 78 review. N.Y. C.P.R.L. 78.
Kelo v. City of New London, 545 U.S. 469, 489 (2005).
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based, nonpartisan character of the backlash sent a direct signal to state legislators that this was the time to take action on the issue.134
The Institute for Justice (IJ), a nonprofit, libertarian public interest law
firm dedicated to advocacy of property rights and, in the case of eminent
domain, prohibition of its use for private development, represented Kelo
throughout the nearly four and a half years of litigation and promoted model legislation through its “nationwide grassroots activism project,” The
Castle Coalition, which organizes efforts to obtain eminent domain reforms.135 Its main objective has been to promote the elimination of statutory authority for the use of eminent domain powers for economic development through state constitutional amendments. However, as an alternative
to a partial repeal of statutory authority, the IJ has advocated for tightening
statutory definitions of blight as well as specific procedural reforms that it
believes would “discourage the abuse of eminent domain . . . (1) allowing a
former owner to regain ownership of condemned property if the government fails to use it within a given period of time; (2) time limits on blight
or redevelopment designations; [and] (3) attorneys fees for condemnees
challenging the validity of takings.”136
In the aftermath of the U.S. Supreme Court’s decision, forty-three states
enacted post-Kelo reforms, and all but one (Rhode Island, which did not act
until 2008) did so relatively quickly, within two years of Kelo. Immediately following the June 23, 2005 decision, legislators in five states (Alabama,
Delaware, Michigan, Ohio, and Texas) took action; in 2006, another twenty-seven followed suit; and in 2007, ten more.137 Only seven states, in addition to the District of Columbia, have not enacted any reforms—
Arkansas,138 Hawaii, Massachusetts, Mississippi,139 New Jersey, New
134. See generally Lynne B. Sagalyn, Positioning Politics: Kelo, Eminent Domain and
the Press, in LAND AND POWER: THE IMPACT OF EMINENT DOMAIN ON URBAN COMMUNITIES,
49, 49-74 (Timothy N. Castano ed., 2008).
135. THE CASTLE COALITION, http://www.castlecoalition.org (last visited Apr. 18, 2011).
136. Model Language for State Statutes Limiting Eminent Domain Abuse, THE CASTLE
COALITION, http://www.castlecoalition.org/survivalguide/310?task=view (last visited Apr.
18, 2011).
137. See Table 2, infra.
138. In the case of Arkansas, a court decision had already ruled that eminent domain
could not be used when the primary purpose of the taking is tax enhancement via economic
development. Elaine B. Sharp & Donald Haider-Markel, At the Invitation of the Court:
Eminent Domain Reform in State Legislatures in the Wake of the Kelo Decision, 38 PUBLIUS: J. FEDERALISM 556, 563 (2008).
139. In the case of both Mississippi and Oklahoma, pre-Kelo state constitutional language
restricted private-to-private takings. Id. at 571 n.3. Constitutional amendments in both Mississippi and Oklahoma also have made the determination of the character of the use a matter
of judicial review, without regard to legislative assertion that the use is public. EMINENT
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York, and Oklahoma.140 These post-Kelo “reforms” vary widely, and the
extent to which they constitute symbol or substance is an empirical question.141 The Castle Coalition graded each state on a scale from “A” to “F”
following an analysis of each state’s legislation, placing heavy emphasis on
whether the legislation placed effective restrictions on blight and the uses
of eminent domain for economic development and on whether the reform
was effectuated through a constitutional amendment.142
As a condition for condemnation, twenty-three of the forty-three postKelo legislative “reforms” made explicit exceptions to their prohibitions if
the exercise of eminent domain is intended to address or eradicate
“blight.”143 These exceptions were not without qualification, however.
Commonly, qualification took the form of a detailed, specific definition of
the term that sometimes narrowed the criteria and sometimes did very little
to make it more restrictive. As Lynn E. Blais has noted, “these states have
uniformly adopted language limiting the exception [for blight] in an attempt to preclude the exception from swallowing the rule,”144 i.e., the remainder of the law’s requirements.
What were the most significant reforms to the states’ open-ended blight
criteria? Which states significantly redefined blight criteria in ways that
presumptively narrowed its applications, and which notably did nothing to
reform blight criteria, nor made other reforms that would have made the
use of condemnation more restrictive? And what can explain the differences in state actions?
Taken as a whole, the post-Kelo legislation reflects a spectrum of approaches to reforming “blight” as a precondition to takings. One approach
was to eliminate blight as a condition for condemnation takings, pure and
DOMAIN LAW FIRMS, http://eminentdomainlawfirms.com/national-content.cfm/Article/
34196/Constitutional-Or-Statutory-Definitions.html (last visited Jan. 25, 2011).
140. See supra note 136.
141. See generally Sharp & Haider-Markel, supra note 138; Andrew P. Morriss, Symbol
or Substance? An Empirical Assessment of State Responses to Kelo (Ill. Law & Econ. Research Papers Series, Research Paper No. LE07-037, 2008).
142. Morriss, supra note 141, at 14.
143. The blight exemption numbers tallied by Lynn E. Blais, Urban Revitalization in the
Post-Kelo Era, 34 FORDHAM URB. L.J. 657, 674 n.112 (2007), are as of November 2006.
Between December 2006 and January 2011, ten additional states passed eminent domain
legislation and Utah rolled back its pre-Kelo eminent domain legislation in 2007. See infra
Table 2. To bring the data on blight exemptions current, to January 2011, we consulted the
National Conference of State Legislatures, which gives bill summaries of eminent domain
legislation passed by year and then reviewed the bill specifics. NAT’L CONF. OF STATE LEGIS., http://www.ncsl.org (last visited Apr. 18, 2011). See supra note 135 and infra Table 2;
see also Edward J. López et al., Pass a Law, Any Law, Fast! State Legislative Responses to
the Kelo Backlash, 5 REV. OF LAW & ECON. 101 app. (2009).
144. Blais, supra note 143, at 674.
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simple. Removing a finding of blight as pre-condition may address the
problems relating to its application and the negative psychological effects
of being labeled as blighted, but it does not reduce the use of eminent domain; rather, it removes one of the required conditions to its use thereby
making use easier. Perhaps that is why only two states went in that direction: Florida, which banned all blight condemnations, even those that occur
in areas that would meet a “strict” definition of that term;145 and New Mexico, which removed the power of eminent domain from the State’s Metropolitan Redevelopment Code and no longer allows condemnations based on
blight, except for a condition known as “antiquated platting.”146 Utah,
which Somin and Blais cite as the one pre-Kelo exception that had removed
the power of eminent domain from redevelopment agencies, rolled back
that law in 2007,147 with an exception for blight, which brings the total to
twenty-four of forty-four (fifty-five percent).
145. See H.B. 1567, 108th Reg. Sess. (Fla. 2006) (signed into law May 11, 2006); Ilya
Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINN. L. REV.
2100, 2138 (2009).
146. A “plat” is a plan or map of a specific land area. “Antiquated platting” is a premature subdivision that “occurs when a property owner divides his land into lots for sale with
no intent to actually develop or construct something on the lots.” ANNEXATIONS, ANTIQUATED PLANNING & ADDRESSING ELEMENT, http://ci.rio-rancho.nm.us/documents/
Development%20Services/Vision%202020%20ICP/Vision%202020%20ICP%20(Nov.%20
2010)/3-A (last visited Apr. 7, 2011). New Mexico is an interesting case, politically. In response to the Kelo decision, then Governor Richardson established a Task Force to study
whether legal protections were needed in New Mexico to limit or prohibit the use of eminent domain for economic development purposes. The Task Force was comprised of twenty-two members, public and private sector experts in the area of eminent domain and commercial and economic development, as well as representatives from small and rural
communities and state and local government. By a split vote, ten to seven, the Task Force
concluded that eminent domain powers should not be used to promote economic development, a recommendation that subsequently was enacted by state legislators. H.B. 393, 48th
Leg., 2007 Reg. Sess. (N.M. 2007). Yet in a minority recommendation, seven members of
the Task Force who would have retained this authority explained that they were concerned
that the recommendation to remove eminent domain authority from the Metropolitan Redevelopment Act would “unduly restrict the ability of local governments to remedy conditions
that limit economic development and growth.” GOV. RICHARDSON’S TASK FORCE ON THE
RESPONSIBLE USE OF EMINENT DOMAIN BY STATE AND LOCAL GOVERNMENTS, FINAL REPORT
23 (Nov. 14, 2006). They favored procedural protections that tightened the definition of
blight and slum areas, increased notice and hearing requirements, and required relocation
and transition assistance, in addition to other adjustments in the redevelopment law.
147. H.B. 365, 2007 Leg., Gen. Sess. (Utah 2007).
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Table 2. Treatment of “Blight” in Post-Kelo Reform Legislation.
State
Alabama
Alaska
Arizona
Date Reform
Enacted
2005
2006
2006 (CI)
Reform With
Blight
Exemption
Yes
Permitted
Yes
Definitional
Blight
Reform
Narrowed
Blight
Procedural
Reform
Tightened /
Slum
Condition
PBP / CCE
Arkansas
California
No Reform
2006
Permitted
Somewhat
Narrowed
Checklist
Colorado
Connecticut
Delaware
Florida
Georgia
2006
2007
2005/2009
2006 (CA)
2006
Yes
Permitted
Permitted
No
Yes
Hawaii
Idaho
Illinois
Indiana
Iowa
No Reform
2006
2006
2006
2006
Permitted
Yes
Yes
Yes
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
2006
2006
2006
2006
2007
No Reform
2005/2006
(CA)
2006
None
2006
Yes
Yes
Yes
Yes
Permitted
2007
2006
2007 (CI)
2006
Permitted
Permitted
Permitted
Permitted
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
No Reform
2007
No Reform
2006
CCE
Narrowed
Tightened /
Objective
Factors
Narrowed
Narrowed
PBP (75%) /
CCE
PBP
Narrowed
PBP
Yes
Yes+
PBP / Checklist
PBP / CCE
Narrowed
Yes
PBP (preponderance)
Optics
PBP (66.7%)
Narrowed
No
Yes
PBP
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North Dakota
2007 (CI,
CA)
2005/2007
Yes
Somewhat
Tightened
PBP (70%)
No Reform
2006 (CI)
2006
2008
2006
Yes
Yes++
Permitted
Yes
Narrowed
Narrowed
PBP
Narrowed
PBP
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
2006
2005
2005
2007 (Rollback)
2006
2007
2007
2006
2006
1155
No
No
Permitted
Yes
Yes
Yes
Permitted
Permitted
Yes
Yes
Broadened
Narrowed
Greater Protection
Narrowed
PBP
PBP
PBP
Wyoming
2007
No
PBP
+ Exempts 2,000 TIF districts.
++ Exempts First-Class Cities (Philadelphia), Second-Class Cities (Pittsburgh,
Scranton).
Sources: THE CASTLE COALITION, 50 STATE REPORT CARD: TRACKING EMINENT
DOMAIN REFORM LEGISLATION SINCE KELO (2007), available at http://www.castle
coalition.org/pdf/publications/report_card/50_State_Report.pdf; Blais, supra note
143, at 671-73; López et al., supra note 143; Somin, supra note 64; NAT’L CONF.
OF STATE LEGIS., supra note 143 (selected state statutes).
A second, more common approach, was to legislate a redefinition of
blight that tightened or narrowed the pre-Kelo blight standards to those
generally conforming to a police-powers rationale, that is, a condition that
poses a threat, is detrimental to or an actual danger to public health and
safety, or is unfit for human habitation. Fifteen states followed this path
(Alabama, Arizona, Delaware, Georgia, Indiana, Kansas, Louisiana, Minnesota, New Hampshire, New Mexico, Oregon, Pennsylvania, South Carolina, Virginia, and Wyoming), though Minnesota148 and Pennsylvania149
148. In the case of Minnesota, the new restrictions exempt the State’s more than 2000
TIF districts, many of which are in the Twin Cities of St. Paul and Minneapolis, for up to
five years. S.F. 2750, § 22, 84th Leg., Reg. Sess (Minn. 2006).
149. In the case of Pennsylvania, the new restrictions exempt areas in “a city of the First
or Second Class,” which under Pennsylvania law includes Philadelphia (the only “First
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made geographic exceptions that, in effect, significantly restrict the scope
of the redefinition’s impact. Five other states (i.e., California,150 Montana,151 Ohio,152 Tennessee,153 and Wisconsin154) only somewhat narrowed
the criteria for a positive finding of blight. In addition, some states (California155 and Georgia156) took a checklist approach, requiring the presence
of several criteria for a positive finding of blight, though this did not
change the reality that only a few states (seven of the fifty) have legislated
such a requirement.
This is not what might be called strict “blight” reform, that is, substantively rewritten blight definitions that limit all condemnations to where
there is documented evidence that the property meets objective blight or
slum standards: that it is unfit for human habitation, creates a threat to
health, safety, infant mortality, or creates a threat of crime or disease and
that condemnation is necessary to wipe out the blight.157 Redefining the
criteria for a finding would represent substantive reform, however modest
in some cases, but without in-place measurable, objective standards (as in
Georgia158), “blight” determinations remain elusively subjective and, open
to abuse in the absence of other procedural safeguards or statutory or judicial standards of heightened scrutiny. Some states (Arizona,159 Colorado,160 Iowa,161 and Michigan162) now require “clear and convincing evidence” of blight, though this does not appear to eliminate the subjective
nature of the assessment.
Class” city), Pittsburgh (the only “Second Class” city), and Scranton (the only “Second
Class-A” city), among others that were certified as blighted under the urban redevelopment
law on or before its effective date, until the end of 2012. H.B. 2054, ch.2, § 203, B.4, B.5,
Reg. Sess. (Pa. 2006).
150. S.B. 1206, § 3, 2006 Leg. (Cal. 2006). California enacted a package of five postKelo eminent domain reform bills. S.B. 53, 1206, 1210, 1650, 1809, 2005-2006 Reg. Sess.
(Cal. 2006).
151. S.B. 41, 60th Leg., Reg. Sess. (Mont. 2007); S.B. 363, 60th Leg., Reg. Sess. (Mont.
2007).
152. S.B. 167, 126th Gen. Assemb. (Ohio 2005).
153. S.B. 3296, 104th Leg., Reg. Sess. (Tenn. 2006).
154. A.B. 657, 2005-2006 Leg. (Wis. 2006).
155. See supra note 150.
156. H.B. 1313, 2005-2006 Leg., Reg. Sess. (Ga. 2006).
157. See Eric R. Clayes, That 70s Show: Post-Kelo Eminent Domain Reform and the
Administrative Law Revolution, 46 SANTA CLARA L. REV. 867 (2006).
158. See supra note 156.
159. Proposition 207 (Ariz. 2006).
160. H.B. 1411, 65th Gen. Assemb., Reg. Sess. (Colo. 2006).
161. H.F. 2351, 81st Gen. Assemb., Reg. Sess. (Iowa 2006).
162. H.B. 5060, S.B. 693, 93d Leg., 2006 Reg. Sess. (Mich. 2006).
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A third approach, followed somewhat less frequently, was to narrow the
basis for blight findings to parcel-by-parcel determination as opposed to
area-wide determination, thereby reducing the possibility that areas without
a preponderance of blighted structures would be subject to blight takings.
Sixteen states (Arizona,163 Georgia,164 Iowa,165 Kansas,166 Louisiana,167
Michigan,168 Missouri,169 Nevada,170 North Carolina,171 Ohio,172 Oregon,173
South Carolina,174 Virginia,175 West Virginia,176 Wisconsin,177 and Wyoming178) enacted this type of reform, and ten coupled parcel-by-parcel determination with a redefinition of blight. The varied response to reining in the
elusiveness of “blight” standards through a tighter set of qualifying criteria
when coupled with a parcel-by-parcel determination raises an internal conflict of sorts. As George Lefcoe notes, “a blight definition protective of
property owners must shield unblighted properties from the threat of condemnation, while a blight norm meant to limit economic development to
areas that desperately need rejuvenation must be predicated on an areawide basis and include unblighted properties necessary for a successful
economic development effort.”179
Several post-Kelo statutes maintained the status quo on “blight” by retaining pre-existing definitions of blight (Illinois,180 Kentucky,181 and
Maine182) or leaving in place blight definitions that include areas where obstacles to “sound growth” or conditions that constitute an “economic or social liability” exist (Alaska,183 Colorado,184 Missouri,185 Nebraska,186 North
163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
174.
175.
176.
177.
178.
179.
180.
181.
182.
183.
184.
See supra note 159.
See supra note 156.
See supra note 161.
S.B. 323, 2006 Leg., Reg. Sess. (Kan. 2006).
S.B. 1, 2006 Leg., Reg. Sess. (La. 2006).
See supra note 162.
H.B. 1944, 2006 Leg., Reg. Sess. (Mo. 2006).
A.B. 102, 74th Leg., 2007 Sess. (Nev. 2007).
H.B. 1965, 2005 Gen. Assemb., Reg. Sess. (N.C. 2006).
See supra note 152.
Meas. 39, 2006 Gen. Election (Or. 2006).
S.B. 1031, 116th Leg., 2d Reg. Sess. (S.C. 2006).
H.B. 2954, 2007 Leg., Reg. Sess. (Va. 2007).
H.B. 4048, 77th Leg., Reg. Sess. (W. Va. 2006).
See supra note 154.
H.B. 124, 59th Leg., 2007 Gen. Sess. (Wyo. 2007).
Lefcoe, After Kelo, supra note 15, at 3-4.
S.B. 3086, 2006 Gen. Assemb., Reg. Sess. (Ill. 2006).
H.B. 508, 2006 Gen. Assemb., Reg. Sess. (Ky. 2006).
L.D. 1870, 122d Leg., 2d Reg. Sess. (Me. 2006).
H.B. 318, 24th Leg., Reg Sess. (Alaska 2006).
See supra note 160.
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Carolina,187 Ohio,188 Texas,189 Vermont,190 and West Virginia191).192 Other
post-Kelo legislative actions did not explicitly address blight criteria
(Maryland, North Dakota, Rhode Island, and Washington).
These legislated blight “reforms” do not equally represent changes in
policy. Consider, for example, the use of economic criteria (#10 from
Luce’s categorization193), widely considered to be the basis on which condemnation for slum clearance moved from a physical and social set of conditions to the “blight that’s right.”194 States that eliminated pre-Kelo “economic use” criteria by explicitly enacting blight conditions confined to
public health and safety criteria were far fewer in number, six (Delaware,195 Indiana,196 Kansas,197 Nevada,198 Oregon,199 and Virginia200), than
the twenty states that in one way or another narrowed blight criteria.
Another example relates to the taking of nonblighted properties. State legislation also only modestly cut back on the use of area or neighborhood criteria in the determination of blight: only five of the thirteen states that in
pre-Kelo statutes permitted blight criteria categorized as “character of the
neighborhood” made changes post-Kelo that required redefined blight to
conform to police-power criteria and/or enacted a requirement for parcelby-parcel determination (Arizona,201 Indiana,202 Michigan,203 Nevada,204
and South Carolina205). Eight other states using the same “character of
neighborhood” criteria made no such adjustments.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
200.
201.
202.
203.
204.
205.
See supra note 169.
L.B. 924, 99th Leg., 2d Sess. (Neb. 2006).
See supra note 171.
See supra note 152.
S.B. 7, 79th Leg., 2d Sess. (Tex. 2005).
S.B. 246, 2005-2006 Leg. (Vt. 2006).
See supra note 176.
See Somin, supra note 145, at 2122-25.
Luce, supra note 15.
HOYT, supra note 6.
S.B. 7, 145th Gen. Assemb. (Del. 2009).
H.B. 1010, 114th Gen. Assemb., 2d Reg. Sess. (Ind. 2006).
See supra note 166.
See supra note 170.
See supra note 173.
See supra note 175.
See supra note 159.
See supra note 196.
See supra note 162.
See supra note 170.
See supra note 174.
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As a condition justifying condemnation, the changes relating to blight
fell way short of the reform movement’s ambitions206 because the legislative efforts to reform the subjective criteria determinative of positive findings did little to alter the expansive permissiveness under which private
property in most states can still be condemned as “blighted.” It is, remarked Somin, the common factor “undermining the potential effectiveness of post-Kelo reform laws.”207 Yet as Lefcoe reminds us in another expansion of his analysis of redevelopment,
definitions of blight traditionally have served four related, yet distinct
functions: (1) a planning justification for planning intervention in city
building; (2) to delineate the precise boundaries of the areas requiring redevelopment; (3) to convince conservative judges in the 1930s and 1940s
that local implementation of federal program[s] like public housing and
urban renewal were simply extensions of the common law of nuisance abatement; and (4) to justify the taking of private property by eminent domain for re-sale to private developers.208
That “blight” has proven to be an enduring policy foundation for condemnation, whether undertaken under the name of slum clearance, economic development, or urban revitalization, speaks volumes about the political
realities of its appeal as a highly malleable concept. A large and strong
coalition of mutual interests supports redevelopment. Though they have
not been as openly vocal in the policy battles over eminent domain as proponents of property rights, city officials, redevelopment agencies, urban
planners, real estate consultants and attorneys, developers, and environmental interest groups have proven to be quite successful at limiting state
legislative reform of eminent domain statutes that would curb the ability of
government officials to push forward growth-oriented projects, as noted
above in the case of Pennsylvania.209 Working through back channels and
legislative amendments and revisions to weaken the proposed reforms affords greater political protection than overt opposition to such high-profile
legislation. Of course, depending upon perspective, these political pressures either undermined reform or left cities, especially those older urban
centers, with the potential to use condemnation powers for projects of public purpose. Wherever one falls on the spectrum of opinion regarding eminent domain takings, the political durability of blight’s broad-based policy
justification presents a lesson in the limits of legislative reform.
206.
207.
208.
209.
See Somin, supra note 145, at 7-17.
Id. at 17.
Lefcoe, Redevelopment Takings After Kelo, supra note 15, at 818.
Property Rights Protection Act, 26 PA. CONS. STAT. ANN. § 204 (West 2008).
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V. CONFLICTING POLITICAL FORCES
The backlash to Kelo caught the attention of state legislators, yet state
legislatures responded in diverse ways, as evident in the blight-definition
reform discussion above. Whereas data on the backlash showed that the
public did not support eminent domain powers as a vital tool for economic
development, the same cannot be said for state and local government officials.210 How we understand the post-Kelo politics of eminent domain
reform is critical to understanding how to interpret legislative results that
have been an intense topic among academic scholars since the 2005 U.S.
Supreme Court Kelo decision. Whereas the legal commentary has been
heavy and steady, analyses of the political dimension have been almost as
sparse as systematic, empirical evidence on eminent domain abuse. Two
empirical studies and the reports of state task forces211 set up to study the
issue shed insight into the role of political factors in shaping reform outcomes.
In an empirical analysis designed to explain the variation in state reform
efforts, Andrew P. Morriss212 argues that the reason for the variation in
reform responses across the nation is rationally tied to differences in the
costs of reform to state legislators in enacting anti-Kelo restrictions on eminent domain powers. Since such restrictions would curb a politically useful
means of distributing resources to supporters, the following expectations
would hold: (1) strong interest groups would impose greater costs to legislators; (2) strong opponents of reform also would increase costs to legislators; (3) an expanding economic pie would generate more opportunities for
rewards and for change, and decrease costs to legislators; and (4) when the
legislature is restricted in raising taxes or the economy is not growing, the
constraints imposed on legislators would be greater. Morriss’ findings are
210. State officials are as much a part of this constituency as local officials because when
the latter do not have the powers and economic aids they turn to their colleagues in state
government for help.
211. Seven states set up either a task force or study commission on eminent domain:
Connecticut (ROBERT S. POLINER, OFFICE OF OMBUDSMAN FOR PROP. RIGHTS, GOODWILL
STUDY: REPORT TO THE JUDICIARY COMM. PLANNING & DEVELOPMENT COMM. (2008)); Indiana (IND. LEGIS. SERVS. AGENCY, FINAL REPORT OF THE INTERIM STUDY COMM. ON EMINENT
DOMAIN (2005)); Missouri (STATE OF MISSOURI, FINAL REPORT AND RECOMMENDATIONS OF
THE MISSOURI EMINENT DOMAIN TASK FORCE (2005)); Ohio (LEGIS. TASK FORCE OF THE
STATE OF OHIO, FINAL REPORT OF THE TASK FORCE TO STUDY EMINENT DOMAIN (2006));
New Mexico (GOV. RICHARDSON’S TASK FORCE REPORT, supra note 146); Oklahoma (the
Joint Task Force on Eminent Domain never submitted a report due to the 2006 Oklahoma
Supreme Court decision in Board of County Commissioners of Muskogee County. v. Edward
L. Lowery, 136 P.3d 639 (2006)), and Washington (ATT’Y GEN. OF WASH., EMINENT DOMAIN TASK FORCE, FINAL REPORT (2009)).
212. See generally Morriss, supra note 141.
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suggestive of the political story behind the observed legislative results of
eminent domain reform. Based upon a multivariate analysis of forty-eight
state responses,213 Morriss found that: (1) spending and revenue restrictions
make substantive reforms less likely; (2) legislatures in growing states were
more likely to adopt reforms than legislatures in stagnant or declining
states; (3) the impact of politics is important in one dimension: as Republican legislative strength increases, adoption of substantive reform becomes
more likely; and (4) measures of ideological climate were not important to
explaining the variation in state responses.214
A study by Elaine B. Sharp and Donald Haider-Merkel, which also
sought to explain the considerable variation by which legislators restricted
the power of eminent domain following Kelo, similarly found a lack of
compelling evidence that citizens’ backlash and demand for change shaped
post-Kelo legislative actions.215 Rather, their results emphasize the importance of organized interests at the state level and the role of populist or
grassroots activism in the politics of eminent domain reform. “Eminent
domain reform” they conclude:
[A]ppears to have some of the features of a populist uprising—one that is
reactive to a history of presumably controversial eminent domain takings
and one that has had greater legislative success in states where the absence of the expertise and resources associated with professionalized development of issue solutions leaves an opening for grass roots activism to
be more influential.216
Insight into the political process of reform can be found in a portrait of
the deliberations of the Missouri General Assembly in its attempted reform
of the state’s eminent domain statute, as documented by Professor Dale A.
Whitman in a legislative memoir.217 Just five days after the Kelo decision,
then-Governor Matt Blunt announced the formation of a task force to examine “the use of eminent domain, especially when the proposed public
use of the property being acquired is not directly owned or primarily used
213. In some instances, states responded more than once.
214. Id. at 35-41.
215. Sharp & Haider-Markel, supra note 138.
216. Id. at 569.
217. Whitman, supra note 36, at 721. A long-time property law professor, Whitman had
been asked to serve as a consultant by the Burlington Northern-Santa Fe Railroad to track
and analyze the legislation on eminent domain that was to be considered in the 2006 legislative session. After being assured that when speaking to legislators and their staff that he
would be expressing his own independent views and not expressing those of the railroad, he
agreed and spent about twenty-two hours in the State Capital meeting with legislators and
staff members. The Missouri House of Representatives had just adopted H.B. 1944, and it
was ready to be sent to the Senate.
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by the general public.”218 The Governor’s task force did not take the “radical” step of recommending that eminent domain no longer be available for
urban redevelopment efforts. Nor did it endorse a citizen proposed initiative for a constitutional amendment that would have called for an all-out
ban on the use of condemnation powers for private-to-private transfers.
Rather, its actions reflected a conscious determination not to stifle urban
regeneration and growth that would have been highly detrimental to urban
redevelopment efforts.219
A number of bills relating to eminent domain were filed in the 2006 session of the Missouri General Assembly, but only one received serious attention: H.B. 1944.220 After quick passage in the House of Representatives, the bill arrived in the Senate, where, Whitman reports, it was greeted
with much less enthusiasm:
There seemed to be a fairly widespread view among likely Senate handlers that the bill represented considerable political risk. Since nearly any
provision that was attractive to the Farm Bureau and property rights advocates seemed likely to be opposed by the real estate development community and the governments of the state’s major cities, a close association
with the bill evidently seemed to many senators a “no-win game.”221
Serious and creative leadership, skillful negotiation of compromise, and
deft drafting of modifications would be needed for the House bill to pass
the Senate. Two issues stand out for the purposes of this Article: deliberations over a redefinition of blight and the making of blight determinations
on a parcel-to-parcel basis. In both cases, the results to date conform to the
“political clashes” noted above. Among legislators as well as the Governor-appointed Task Force, Whitman noted, there was no enthusiasm to take
on the job of redefining “blight” despite the fact that the statutory definitions were recognized as definitively vague.222 When it came to reform,
pragmatism prevailed. “Redefining blight was widely regarded as a morass
that could consume huge resources of time and energy with very little
payoff. Even the Eminent Domain Task Force concluded that ‘a complete
overhaul of the blight definition is not obtainable.’”223 On the question of
whether every parcel in a redevelopment project must be blighted as the
Senate Committee bill had said, that chamber’s leader on the bill, Senator
218.
219.
220.
221.
222.
223.
Id. at 742.
Id. at 730.
Supra note 169.
Id. at 732.
Id. at 735-43.
Id. at 742.
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Chris Koster, presented a compromise in a substitute bill. His language
provided that:
[T]he condemning authority shall individually consider each parcel of
property in the defined area with regard to whether the property meets the
relevant statutory definition of blight. If the condemning authority finds a
preponderance of the defined redevelopment area is blighted, it may proceed with condemnation of any parcels in such area.224
While the language of the compromise—“preponderance”—was “somewhat ambiguous,” Whitman noted that it was “mutually acceptable and
would seldom be a barrier to actual redevelopment projects.”225 Other
states have used a similar approach but with thresholds that are a little
higher. The trend since Kelo has been to move the percentage required
higher. In assessing the legislative effort on blight reform, Whitman concluded that:
[T]he blight provisions of the final legislation did very little harm to redevelopment, but neither did they do much to clean up abuses. Landowners
were placed in a better procedural posture when they sought to challenge
findings of blight, but they could point to very little in the bill that improved their substantive chances of success.226
While expressing disappointment in the fact that blight was not redefined
and that reform did not address the lack of serious judicial review of local
determinations of blight, Whitman concluded that outside groups viewing
these results from afar might well discount the extreme difficulty legislators and legal experts faced in finding a legal solution, as distinct from a
political solution, to this problem.227 The General Assembly left the determination of what is a legitimate or illegitimate taking to the political
process, which Whitman concluded may still be the best venue for these
determinations:
[W]hen a taking is authorized that offends local sensibilities broadly, the
political repercussions on the decision-makers are apt to be most immediate and direct. . . . Indeed, it is somewhat ironic that conservatives, who
usually argue against centralization of political power and who favor local
autonomy, have taken the view in the eminent domain controversy of
2005-06 that property owners need protection from local government by
an “activist” Supreme Court.228
224.
ed)).
225.
226.
227.
228.
S.S. H.B. 1944, § 523.274 (cited in Whitman, supra note 36, at 742 (emphasis addWhitman, supra note 36, at 742.
Id. at 743.
Id. at 765.
Id. at 765.
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Lynn E. Blais, a strong supporter of the availability of eminent domain
for economic development projects, is critical of the post-Kelo modifications that have been made to eminent domain statutes:
Overall, the post-Kelo eminent domain statutes overwhelmingly share two
characteristics: they limit the use of eminent domain to transfer private
property from one owner to another for economic development purposes
and they make exceptions to that prohibition for the eradication of blight.
These two components, taken together, are unlikely to meaningfully limit
the ability of state and local governments to pursue urban revitalization
projects. They are very likely, however, to channel such projects in ways
that make them less effective, less efficient, and dramatically less fair.229
She believes that the increased application and use of a blight requirement
will “require local governments to wait until a city area is in substantial decline (i.e. blighted) before engaging in revitalization projects.”230 This, she
believes, will make it more difficult and costly to involve private developers in revitalizations because more projects will be forced into poor and
minority areas.231 Is she correct? And is this an incidental effect of these
changes, or was it one of the purposes of the changes made post-Kelo?
Berman v. Parker232 was a unanimous decision approving the use of
condemnation for urban renewal that raised little outcry. The decision in
Kelo, more than fifty years later, approved a more limited condemnation
and imposed more requirements, yet the vote was only five to four in favor
and a huge outcry followed. Is this because the Supreme Court, and the nation as a whole, has become more conservative and more protective of
property rights than it was at the time Berman was decided? Or is it because there is stronger and more vocal opposition to condemnations of private homes in white suburban communities than there is to takings in poor
and minority areas of large cities like Washington D.C.? Remember, there
was no requirement for blight findings in Kelo. To this comparison we
should also add the perception held by opponents of the project in Kelo,
and then the decision in Kelo, that the New London project had a relatively
low public versus private benefit ratio.
Much of the Kelo outcry, according to at least one expert on blight and
redevelopment, Wendell E. Prichett, may have come from the fact that the
pattern of eminent domain use has dramatically changed over this time period, with a large number of condemnations occurring in suburban areas.
“Put simply, eminent domain has received more attention over the past year
229.
230.
231.
232.
Blais, supra note 143, at 676.
Id. at 685.
Id. at 685-87.
348 U.S. 26 (1954).
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(i.e. 2005) because the people involved in these disputes are middle-class
suburban homeowners and small businessmen, particularly those in older,
built-out suburbs.”233 If this is the underlying socio-economic foundation
of the backlash, then the post-Kelo legislative reforms that narrowed the
definition of blight probably served this class of voters while also curbing a
few of the more egregious abuses arising from the term’s breadth. As the
history of urban renewal projects in the post-World War II era make clear,
poor and minority communities suffered disproportionally from the wholesale clearance of blighted neighborhoods, and many people, including
Blais, now oppose the use of condemnation where it has that result.234
“Making ‘blight’ a precondition for economic development takings,” as
Columbia Law School Professor Thomas A. Merrill noted in testimony before the U.S. Senate Committee on the Judiciary, “seems designed largely
to reassure the middle class that its property will not be targeted for such
projects, not to protect the very poorest communities.”235 As we have
shown, those living in poor and minority areas in large- and medium-sized
cities received no similar benefit from the post-Kelo legislative modifications.
VI. CREATING BETTER SAFEGUARDS
The Kelo backlash motivated many legislatures to enact reform laws that
would provide better protection to property owners, in particular, home
owners, facing condemnation actions, and toward that end, as we discussed
earlier, a number of state legislatures have tried to find ways to alter requirements relating to findings of blight. Some states have amended their
laws to restrict or prohibit condemnation of individual parcels that are
233. Prichett based his conclusion on a review of articles on eminent domain disputes
following Kelo during the four-month period of June 1, 2005 to September 30, 2005. Of the
fifty separate disputes uncovered from searches on Lexis, Westlaw, and American newspapers, twenty-four were located in suburban areas. Prichett, supra note 90, at 909 n.62. On
the character of the backlash see, Janice Nadler et al., Government Takings of Private Property: Kelo and the Perfect Storm (Nw. U. Sch. of Law, Pub. Law and Legal Theory Series,
Paper No. 07-05, 2008). Nadler, Diamond, and Patton analyzed reactions of citizens as revealed in several polls taken after the decision and found that the type of property being taken—a business, a home, or vacant land—shapes the level of support for the use of eminent
domain powers, as does the proposed use for the property, whether it is to be taken for a
school, a shopping center, or high-value homes. While poll data indicated a “vigorous and
apparently uniform response to Kelo,” the authors conclude that this “should not be confused with what is actually a more nuanced public evaluation” and not a wholesale rejection
of the legitimacy of eminent domain. Id. at 23.
234. FRIEDEN & SAGALYN, supra note 11, at 27-37.
235. The Kelo Decision: Investigating Takings of Homes and Other Private Property:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 14-16 (2005) (statement of
Thomas W. Merrill).
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themselves not blighted. North Carolina previously allowed redevelopment
agencies to take unblighted properties if two-thirds of the buildings within
the area were blighted. But now each individual parcel to be taken must be
evaluated and determined to be blighted.236
Georgia’s redevelopment law now requires that all property to be taken
must be blighted.237 In addition, the public agency undertaking a condemnation is now required to give “notice in writing to the property owner regarding specific harm caused by the property and [the] owner has failed to
take reasonable measures to remedy the harm.”238
Minnesota has altered its law to require that each building to be taken be
determined to be structurally substandard “unless there is no feasible alternative to the taking of the parcels on which the buildings are located in order to remediate the blight and all possible steps are taken to minimize the
taking of buildings that are not structurally substandard.”239 It is not yet
clear how the “no feasible alternative” language will be interpreted. If it
means only the equivalent of no reasonable alternative, it may not turn out
to mean much.
A prohibition against taking unblighted parcels could serve to limit one
unfortunate tendency: the tendency to expand the size of redevelopment
districts. The larger the area, the easier it will be to find more examples of
blight. If the number of citations of examples of blight is all that counts in
finding an area blighted, rather than the degree of blight, unblighted parcels
can easily be included, and the larger the area, the better.240 The desire to
include developable areas, together with ones capable of showing blight,
not only leads toward larger areas, but also leads to strangely shaped districts, shapes which Colin Gordon refers to appropriately as “gerrymandered.” In drawing the boundaries, the areas that are most intensely
blighted may be avoided in order to better assure an ability to develop the
chosen zone. In TIFs, large, developable areas will capture more of the
property growth potential and increased taxes. For government officials
and municipal bond underwriters, the larger area means a safer bet that the
TIF district will be able to pay off the bonds. Hence the expression: “the
blight that’s right.”241 A striking confirmation of this is the nearly one
hundred percent growth in the size of TIF districts in California, to over
236. N.C. GEN. STAT. § 160A-515 (2007). See generally Carolyn A. Pearce, Forcing Urban Redevelopment To Proceed “Building by Building”: North Carolina’s Flawed Policy
Response to Kelo v. City of New London, 85 N.C. L. REV. 1784, 1790 (2007).
237. GA. CODE ANN. § 22-1-1 (2006).
238. Id. § 22-1-1(1)(A)(iii).
239. MINN. STAT. ANN. § 117.075 (West 2008).
240. Gordon, supra note 3, at 320-27.
241. Lefcoe, Finding the Blight that’s Right, supra note 15, at 995.
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eight hundred acres, following the approval of Proposition 13 and its tight
limits on property taxes which we discussed earlier.242 When TIF district
lines are deliberately drawn to include unblighted parcels ripe for development that are likely to be the first to be redeveloped and, thus, the most
immediate source of increments for repaying the bonds, officials can be
said to be engaging in what we would call “TIF gerrymandering.”243
It must be remembered, however, that blocking the taking of individual,
unblighted parcels in a large project area (which is otherwise generally
blighted and a good candidate for an appropriate economic development
project) can render the project too costly or otherwise impossible to implement. While based on a simple, understandable principle (“if it ain’t
blighted, don’t take it”), such an approach to the problem is probably too
simplistic, and potentially counterproductive—effectively throwing the baby out with the bath water. North Carolina, prior to Kelo, allowed takings
of parcels that were “necessary or incidental” to a project in which at least
two-thirds of the buildings were of a blighted character.244 In 2006 they
amended the law to move away from the concept of a “blighted area” to
that of a “blighted parcel.”245 But this change according to commentators,
will curtail the ability of planners to efficiently address redevelopment,
forcing programs to move on a “lot by lot, building by building” basis.246
Blais makes a similar point.247 We agree. In the Times Square Project certain properties were omitted from the taking intentionally (notably, a hotel
and an office building), but having to omit all small sites that were not
blighted would have prevented the acquisition of the critical mass required
for the Project as a whole. This was true in the Atlantic Yards Project as
well.
Another approach being taken is to shift the burden of proof on unblighted parcels to the government. An example of this can be is found in
West Virginia where the legislature has authorized property owners who
wish to challenge a taking to go directly to the circuit court to get a review
determining if any unblighted property to be taken is “necessary” for the
242. See Gordon, supra note 3, at 327.
243. Lefcoe provides one such example where a redevelopment agency stretched the
boundaries of an existing project area to encompass a purely private development of about
twenty-five acres about to be built. See Lefcoe, After Kelo, supra note 15, at 64-65 (discussing Regus v. City of Baldwin Park, 139 Cal. Rptr. 196, 199-200 (Cal. Ct. App. 1977)).
Their plan was to make use of two projects in their TIF that were already underway to generate about $126,000 in annual tax revenues. See id. at 65.
244. See Pearce, supra note 236, at 1789-90.
245. See N.C. GEN. STAT. § 160A-515 (2006).
246. Pearce, supra note 236, at 1790-91 (discussing Berman v. Parker, 348 U.S. 26, 35
(1954)).
247. See Blais, supra note 143, at 684-85.
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project, and to require the agency to show that with respect to the project
each of the following is true:
(1) That the project cannot proceed without the condemnation of the private property at issue;
(2) That the private property shown not to be blighted cannot be integrated into the proposed project or program once the slum and blighted
area surrounding such property is taken and cleared;
(3) That the condemnation of the unblighted property is necessary for
the clearance of an area deemed to be slum or blighted;
(4) That other alternatives to the condemnation of the unblighted property are not reasonably practical;
(5) That every reasonable effort has been taken to ensure that the unblighted property and its owners have been given a reasonable opportunity
to be included in the redevelopment project or plan without the use of eminent domain;
(6) That no alternative site within the slum and blighted area is available
for purchase by negotiation that might substitute as a site for the unblighted
property;
(7) That the redevelopment project or plan could not be restructured to
avoid the taking of the unblighted property;
(8) That the redevelopment project or plan could not be carried out without the use of eminent domain; and
(9) That there is specific use for the unblighted property to be taken and
a plan to redevelop and convert the unblighted property from its current use
to the stated specific use basically exists.248
To allow unblighted parcels to be taken in order to facilitate a larger
project, but still add better protection against excessively easy or abusive
findings of blight, Pennsylvania has created a comparatively more detailed
definition of blight that focuses on the characteristics of individual properties.249
In some states, the courts have elevated powers to review agency determinations as a safeguard, or a way of limiting certain condemnations. Five
states are generally recognized for their heightened judicial scrutiny in
eminent domain cases.250 The five states are Arizona, Delaware, Georgia,
Michigan, and Texas.251 Their expanded level of review appears to have
come from the courts themselves rather than from acts of the state legisla248. W. VA. CODE ANN. § 16-18-6A (West 2006). See also Blais, supra note 143, at 676.
249. See 26 PA. CONS. STAT. ANN. § 205 (West 2008). See also Lefcoe, After Kelo, supra
note 15, at 58.
250. See Sharp & Haider-Markel, supra note 138, at 563.
251. See id. at 571 n.1.
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ture. Ohio is another one. In 2006, the Ohio Supreme Court held in City of
Norwood v. Horney252 that Ohio courts must apply heightened scrutiny
when reviewing statutes that regulate the use of eminent domain powers.253
The Ohio Supreme Court decided that “rote deference” to municipalities
was not a proper judicial standard and that it did not comport with appropriate separation of powers.254 It concluded its opinion in City of Norwood
by finding that the Norwood Code’s definition of “deteriorating area” was a
“standardless standard” that merely “recites a host of subjective factors that
invite ad hoc and selective enforcement” and it held that the use of “deteriorating area” as a standard for determining whether private property is subject to appropriation was “void for vagueness.”255
Such review by courts may provide a level of scrutiny that limits clear
abuses, and could raise the requirements for finding blight. But we question whether judges can ever undertake the level of effort, or possess the
amount of knowledge, that would be needed to produce a balanced set of
sophisticated criteria and standards required for a good definition of blight.
But, as we have seen in the New York Appellate Division’s decision in
Kaur, a heightened level of scrutiny in the review of governmental findings
of blight can be an eye opener and a potential control over an otherwise unregulated ability to make findings, and would in Kaur have produced a different outcome if it had been the final decision.
A better way to combat these unfortunate dynamics and control expansive, overreaching determinations of blight, without excluding unblighted
parcels needed for the project, could be achieved by changing the requirements away from strings of citations of examples of blight, and replacing it
with a definition crafted by experts in the field that excludes the most
abused components and requires finding the degree of blight, and showing
a minimum level of blight. This will require statutes with smart standards
and at least some degree of objective quantification.
Some standards currently used should be excluded. One that cries out
for such elimination (or very strict control) is “underutilization”256 because
252. 853 N.E.2d 1115 (Ohio 2006).
253. See id. at 1143; see also Nicholas M. Gieseler & Steven Geoffrey Gieseler, Strict
Scrutiny and Eminent Domain after Kelo 21-22 (Pacific Legal Foundation, Program of Judicial Awareness, Working Paper, No. 09-005, 2009).
254. Horney, 853 N.E.2d at 1137-39. It also found that the analysis by the Supreme
Court of Michigan in, County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), and
those presented by the dissenting judges of the Supreme Court of Connecticut and the dissenting justices of the United States Supreme Court in Kelo, were the better models for interpreting its own Constitution. Horney, 853 N.E.2d at 1141.
255. Id. at 1145-46.
256. See generally Piper, supra note 117 at 1166-72, 1188-91.
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that standard can pick up every parcel that could be built out further (under
its current floor area ratio) or rebuilt to a higher and better use. Also every
property that has air rights or development rights that have not been sold
could be condemned using this criteria. At a minimum, a clear level of
substantial underutilization, quantifiable on a per-parcel basis, would need
to be set for this to make sense,257 together with a required percentage of
parcels that must be found to be “underutilized” at that level. Such an approach would more likely mean that deteriorated conditions are truly
present, not just homes whose zoning has changed over time, or whose
owners prefer less-than-maximum-size structures.
Another candidate for total elimination would be the “age” of structures,
by itself, without regard to conditions. Age can also correlate with quality
and architectural distinctiveness and conflicts with the legislated value of
preserving historic buildings. Using age as an eligibility criterion for making buildings subject to potential clearance goes against the logic of federal
and local preservation laws and programs that were, in fact, “a response to
the urban renewal and blight elimination programs of the 1950s and
1960s.”258 To be eligible for the National Register of Historic Places, a
building has to be at least fifty years old, or have historical or architectural
importance that is exceptional.259 Even under state and local historic and
preservation laws, new buildings are rarely made landmarks. In New York
City, “pre-war building” means a pre-World War II residential structure but
it is also synonymous with space, quality, and higher value.
The concepts of “future” and “potential” blight should also be eliminated; they are even more subjective than finding blight on a current basis. If
it requires finding that the area is in relative decline, then half the parcels in
the country could be found to be in decline relative to the other half. If
finding that the parcels are in decline in any absolute, measureable way is
required, then it does not matter how new or valuable the property currently
is. Despite the flaws in using future blight as criteria, California appears to
be one of the few states where the concept has been rejected.260
As previously mentioned, only seven states currently have any quantification requirements in their laws.261 But the quantification in these jurisdictions is so limited, it does not address the problem: their laws generally
257. The Appellate Court in Kaur thought a 40 percent or lower Floor Area Ratio (FAR)
would work as a standard. Kaur v. N.Y. State Urban Dev. Corp., 72 A.D.3d 1, 19 (N.Y.
App. Div. 2009).
258. Brown, supra note 36, at 226.
259. National Historic Preservation Act, 16 U.S.C. § 470-470x-6 (2006).
260. See 99 Cents Only Stores v. Lancaster Redev. Agency, 237 F. Supp. 2d 1123, 113031 (C.D. Cal. 2001); Gordon, supra note 3, at 328.
261. See Gordon, supra note 3, at 320 n.134.
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only require that some percentage of the properties in the designated area
be found to be blighted for the area to be designated as blighted. The findings within the qualifying parcels remain based solely on broad subjective
determinations. To correctly do what we propose, a panel of experts from
the fields of sociology, economics, criminology, city planning, engineering,
and architecture would have to carefully select appropriate, objective standards and criteria, and then, where possible, determine minimum levels that
must be found. Currently, the definitions, if any, are left to politicians, and
“findings” are left to agencies based on data provided by environmental
consulting firms, who know they have been hired to try to show the existence of blight, and to lawyers, who have the same motivation and purpose.
They have no required standards that have to be met. They work from the
findings in prior projects, ones that previously satisfied judicial review
(which, as we have seen in Kaur, may be effectively non-existent), and put
together a string of examples and data in a way that makes a case. There
are few, if any, factors that they are required to assess, and no factors they
are required to exclude.262
Each state wishing to reform its blight criteria would have to have the
governor, working perhaps with or through an independent academic, professional body, or civic organization (to limit business, political, and activist influence) appoint the panel of experts. The blight standards proposed
by the panel would then be subject to public review and comment before
being sent to the legislature for enactment into law. The legislature could
empower the executive branch to develop the definition and provide it with
the power of law, or the legislature could be required to vote “yes” or “no”
on the proposed standards without amendments.263 To the extent there is a
need for or value in having variations in the standards geographically within a state, the experts would be in a good position to provide that. The results will of course vary from state to state, as have state laws and reforms
to date, and the quantification aspects will differ widely, as they should.
262. Colorado requires a finding of only one of its blight factors for a finding of blight
that is not contested; a finding of four factors is required if the property taken will be owned
by the public sector and a finding of five factors of blight is required if the property is transferred to private entities under urban removal. COLO. REV. STAT. ANN. §§ 31-25-103(2)(1)
(2005), 31-25-105.5(2) (2004). As a result of this requirement, a local authority must meet
a greater standard where the appearance of favoritism to a private individual is the highest.
Brown, supra note 36, at 225.
263. Such an approach has been used by Congress and the President for military base
closings. Governor Cuomo of New York has proposed the use of executive branch panels to
shield the legislature from votes on public health care modifications and cuts, to set requirements for state chartered banks, and to effectuate prison closings. Jacob Gershman,
Cuomo Reaches for Power, WALL ST. J., Feb. 18, 2011, at A15-16.
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Since this has never been done to our knowledge, it may be best to ask
that these blight definition panels, try to keep it simple. However, this is
not simple stuff. It is, for example, conceivable, and would in fact be quite
reasonable, to have the panels provide standards containing alternative minimums, i.e., lower minimums in one category (e.g. the theft rate) if the
rate found in second category (e.g., murder or rape rate) is higher.264 Finding that there are mice or rats, even if the frightening phrase “infestations”
is included, would not be sufficient. The entire Upper West Side of Manhattan has enough mice for it to be found to be blighted on that basis.
Some greater amount of data would be needed. Nor would simply finding
that there are “tax delinquent” properties be sufficient. There would have
to be municipal liens for failure to pay taxes, or municipal takings, in
excess of a specified dollar amount or percentage of the property value, accumulated over a set period of time. As the New York Appellate Division
in Kaur said, if one can count things like unpainted block walls or loose
awnings “virtually every neighborhood in the five boroughs will yield similar instances of disrepair . . . .”265 Variations in the quantification would
also be a way to address regional differences within the state.
If the state can come up with a good set of standards, then it might also
consider taking the standards to an even higher level of meaningful application; it could provide stricter requirements for uses that have public-toprivate benefit ratios at the low end of the public purpose hierarchy (as offered in this Article or as established by the state). So for example, “Level
1 Blight Standards” (the least stringent) would be applicable to the highest
types of Economic Development Uses, and the most stringent standards
(say Level 3) would be required for low-end undertakings such as one-toone transfers, pure tax enhancement projects, and TIF projects. A high
standard should also apply to cases where removal of blight is the sole public purpose. This as we have seen is allowed in New York.266 This could
also be applied to economic development projects containing small public
to private benefit ratios. These should require more demanding standards
than those having high public to private benefit ratios.
264. The crime rate as a whole could be a quantitative condition provided it is clearly defined. In Wisconsin, for a property to be found to be blighted the crime rate on that property
must be three times, or more, the average crime rate in the city where the property is located. See 2006 Wis. Sess. Laws 233.
265. Kaur v. N.Y. State Urban Dev. Corp., 72 A.D.3d 1, 17 (N.Y. App. Div. 2009).
266. Under present law, if found to be blighted, buildings can be taken and cleared to
land bank or to pave it over.
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CONCLUSION
The issue of blight and eminent domain has been extensively written
about, sometimes in considerable detail. Even though the Kelo decision did
not turn on the issue of blight, it triggered a national debate and substantial
additional literature, about the use and abuse of eminent domain, and it also
stimulated state legislatures to enact a series of statutory reforms. The
permissive, expansive use of the blight concept has blurred the line between proper use and abuse, especially when the power of condemnation is
exercised for economic development purposes. Over time, this extremely
loose practice has undermined the use of blight findings as a basis for condemnation. Our exploration here has led us to see the need to impose reason and rigor on an essential subject matter that has evolved without any.
There has been little to no thoughtful discipline applied as the definition of
blight has grown and its “finding” expanded. If blight is to continue to be a
condition and a cornerstone for condemnations, urban renewals, or economic development undertakings, it needs serious alteration. In the absence of any real definition or standards, it will continue to serve more as
an expensive foil for projects sought by developers and government officials, than as a screen filtering out lands that should be left alone.